Part of a public library containing court papers related to lawsuits involving
Scientology in some way. Collected to help lawyers and critics of Scientology
in future lawsuits from or against this cult. Please report back if this has
been of help, or send new contributions to the collection. Thanks.
Andreas Heldal-Lund (heldal@online.no)

UNITED STATES of America
v.
Mary Sue HUBBARD et al., Appellants.
UNITED STATES of America
v.
Mary Sue HUBBARD et al.
Church of Scientology of California, Appellant.
CHURCH OF SCIENTOLOGY OF CALIFORNIA, Appellant,
v.
UNITED STATES of America et al.
Nos. 79-2312, 79-2313 and 79-2324.
United States Court of Appeals,
District of Columbia Circuit.
Argued Feb. 21, 1980.
Decided July 24, 1980.
Supplemental Opinion Feb. 9, 1981.
Church and individual defendants appealed from orders entered by the United
States District Court for the District of Columbia, Charles R. Richey, J.,
making publicly available all documents seized during searches of churches,
denying motion by the church to intervene, and denying motion seeking immediate
return of the seized documents and also seeking injunctive relief. The Court of
Appeals, Wald, Circuit Judge, held that: (1) church had sufficient interest in
papers seized during two searches of church buildings to be entitled to seek,
by motion, return of such property and to apply for injunctive relief
restraining public access to such documents; however, it was not appropriate
for the church to seek from Court of Appeals writ of mandamus directing
district court to refrain from unsealing such documents for public inspection;
(2) district court had ancillary jurisdiction over claims of the church, as
well as most claims made by individual defendants concerning the documents;
and (3) seal of documents, which were introduced under seal only in pretrial
suppression hearing and only for purpose of showing that search and seizure
were unlawful and which were not used in ruling on the suppression motion,
should not have been lifted. After remand, the Court of Appeals entered a final
judgment reversing the original unsealing order in which the appeals were
taken, and remanded the case for reentry of an order.
Reversed and remanded.
MacKinnon, Circuit Judge, dissented and filed opinion.
[1] SEARCHES AND SEIZURES
Party from whom materials are seized in course of criminal investigation
retains protectible property interest in the seized materials.
U.S.C.A.Const. Amend. 4.
[2] CONSTITUTIONAL LAW
Fourteenth Amendment's protection against arbitrary or unjustifiable state
deprivations of personal liberty prevents encroachment upon constitutionally
recognized sphere of personal privacy, and Fifth Amendment's protection of
liberty from federal intrusion upon privacy sphere is no less comprehensive.
U.S.C.A.Const. Amends. 5, 14.
[3] SEARCHES AND SEIZURES
Although public attributes of corporation may reduce pro tanto reasonability of
their expectation of privacy, nature and purposes of corporate entity and
nature of interest sought to be protected determines question whether, under
given facts, corporation per se has protectible privacy interest.
U.S.C.A.Const. Amend. 4.
[4] FEDERAL COURTS
Church had sufficient interest in papers seized during two searches of church
buildings to be entitled to seek, by motion, return of such property and to
apply for injunctive relief restraining public access to such documents;
however, it was not appropriate for the church to seek from Court of Appeals
writ of mandamus directing district court to refrain from unsealing such
documents for public inspection. U.S.C.A.Const. Amends. 5, 14;
Fed.Rules Cr.Proc. Rule 47, 18 U.S.C.A.; Fed.Rules Civ.Proc. Rules 3,
8(a), 28 U.S.C.A.
[4] SEARCHES AND SEIZURES
Church had sufficient interest in papers seized during two searches of church
buildings to be entitled to seek, by motion, return of such property and to
apply for injunctive relief restraining public access to such documents;
however, it was not appropriate for the church to seek from Court of Appeals
writ of mandamus directing district court to refrain from unsealing such
documents for public inspection. U.S.C.A.Const. Amends. 5, 14;
Fed.Rules Cr.Proc. Rule 47, 18 U.S.C.A.; Fed.Rules Civ.Proc. Rules 3,
8(a), 28 U.S.C.A.
[5] FEDERAL COURTS
District court, which ruled upon defendants' motion to suppress documents
seized during searches of churches, had ancillary jurisdiction to hear claims
asserted by the church, which sought to have papers not used in either criminal
prosecution or in ruling on suppression motion returned under seal, of its
property and privacy rights in such papers. U.S.C.A.Const. Amends. 5,
14; Fed.Rules Cr.Proc. Rule 47, 18 U.S.C.A.; Fed.Rules Civ.Proc.
Rules 3, 8(a), 28 U.S.C.A.
[6] FEDERAL COURTS
Defendants' claims that permitting public access to documents, which were
seized during two searches of churches but which were neither employed in
criminal prosecution nor employed in ruling upon suppression motion, would
vitiate benefits of possible reversal of convictions on appeal, would interfere
with proceedings commenced and orders entered in other federal courts, would
prejudice fair trial rights in other criminal proceedings, and would violate
privacy rights of individuals mentioned or discussed in seized documents were
not inextricably bound up in assessment of validity of judgments of conviction,
and thus district court had ancillary jurisdiction over defendants' challenges
to unsealing of such documents; however, claim that release of the documents
would violate negotiated plea disposition could not be divorced from criminal
proceedings with themselves, and thus such claim did not fall within ancillary
criminal jurisdiction of district court.
[7] FEDERAL COURTS
Orders unsealing documents, which were seized during searches of churches but
which were used in neither criminal proceeding nor in ruling on suppression
motion, were separable from and collateral to rights of parties to the criminal
proceedings, and thus such orders, which would allow irreparable damage to be
done to privacy and property interests asserted, were appealable.
[8] CRIMINAL LAW
Seal of documents, which were seized during searches of churches, which were
introduced under seal only in pretrial suppression hearing and only for purpose
of showing that search and seizure were unlawful, and which were not used in
ruling on the suppression motion, should not have been lifted, absent showing
of substantial factor favoring public access, where unsealing had not been
shown to serve public's right of access to courts, no previous access had been
shown, both church and individual defendants objected, and the documents had
been seized from nonpublic areas of the churches. U.S.C.A.Const. Amends.
5, 14; Fed.Rules Cr.Proc. Rule 47, 18 U.S.C.A.; Fed.Rules Civ.Proc.
Rules 3, 8(a), 28 U.S.C.A.
*294 **400 Appeals from the United States District Court for the District
of Columbia (D.C. Criminal No. 78-401 and D.C. Civil Action No. 79-2975).
Earl C. Dudley, Jr., Washington, D. C., with whom Michael Nussbaum,
Washington, D. C., was on brief, for appellants Hermann and Raymond.
Leonard B. Boudin, New York City, was on brief, for appellant Hubbard.
Philip J. Hirschkop, Alexandria, Va., was on brief, for appellants Heldt and
Snider.
Roger Zuckerman, Washington, D. C., was on brief, for appellants Weigand and
Willardson.
John Kenneth Zwerling, Alexandria, Va., was on brief, for appellant Wolfe.
Leonard J. Koenick, Washington, D. C., was on brief, for appellant Thomas.
Leonard B. Boudin, New York City, for appellant Church of Scientology of
California.
Steven C. Tabackman, Asst. U. S. Atty., Washington, D. C., with whom Charles
F. C. *295 **401 Ruff, U. S. Atty., Carl S. Rauh, Principal Asst. U. S.
Atty., John A. Terry, John R. Fisher, Keith A. O'Donnell, Michael W. Farrell,
Raymond Banoun, Judith Hetherton and Timothy J. Reardon, III, Asst. U. S.
Attys., Washington, D. C., were on brief, for appellee.
George K. Rahdert, St. Petersburg, Fla., and James L. Yacavone, III,
Clearwater, Fla., were on brief, for amici curiae Clearwater Newspapers, Inc.
and Times Publishing Co.
Also, Ronald G. Precup, Washington, D. C., entered an appearance, for
appellants Hermann and Raymond.
Leonard S. Rubenstein and Geraldine R. Gennet, Alexandria, Va., entered
appearances, for appellants Heldt and Snider.
Roger Spaeder and Lawrence A. Katz, Washington, D. C., entered appearances,
for appellants Weigand and Willardson.
Richard McMillin, Washington, D. C., entered an appearance, for appellant
Thomas.
Before ROBINSON, MacKINNON and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Dissenting opinion filed by Circuit Judge MacKINNON.
WALD, Circuit Judge:
We confront the issue here of whether and on what grounds a district court
judge may make available to the public papers seized from a third party
nondefendant, subsequently introduced under seal only in a pretrial suppression
hearing and only for the purpose of showing that the search and seizure were
unlawful. As far as we have been able to determine, there is no precedent on
the issue. The seized documents were made available to the public on the eve of
the defendants' convictions under a disposition agreement and at a time when
the trial judge's ruling denying suppression of the seized materials was
certain to be appealed. Three reasons were given for making these documents
publicly available: "there is a right in the public to know what occurs before
the courts;" "there is a public interest in access to court records;" and
"sunshine is the best disinfectant." [FN1] When the unsealing decision was
announced, the third party nondefendant sought but was denied leave to
intervene to assert its interest in retaining the documents under seal. It then
moved the court for immediate return of the documents and for an order
temporarily enjoining public access pending *296 **402 their return. These
motions were also denied.
FN1. United States v. Hubbard, Cr. No. 78-401 (D.D.C. Oct. 25, 1979).
The consolidated appeals argued to this panel are from four orders of the
district judge. The first was entered in response to a motion filed by the
individual criminal defendants to seal the stipulated record on which the
trial was to occur. The motion was denied and the judge took the occasion
to order the unsealing of the documents at issue here. That order is cited
above and offers the rationale quoted in the text. The defendants' motion
for reconsideration was denied in a second order entered October 30, 1979,
also appealed here. Although the motion for reconsideration was denied, the
court in a memorandum order responded to several arguments for
nondisclosure raised by the defendants and expressed an intention to screen
the documents prior to release to ensure against "an unwarranted invasion
of privacy" of "innocent third-parties." These two orders are appealed by
the individual defendants, Docket No. 79-2312, and are reprinted in the
joint appendix filed in that case at 171 and 223, respectively. (The joint
appendix in No. 79-2312 is hereinafter referred to as Hubbard App.)
The third and fourth orders are the subject of appeals by the Church of
Scientology of California (the "Church"). The third order, entered October
31, 1979, denied the Church's motion to intervene in the criminal case to
assert its interest in retaining the documents under seal; the order is
appealed in No. 79-2313. The fourth order, rendered orally November 2,
1979, in a proceeding assigned to the same judge but docketed in the
district court as a separate civil action, dismissed the Church's motion
for return of property and application for an order temporarily restraining
public access to the documents unsealed pending their return; the order is
appealed in No. 79-2324. Transcript of Proceedings, Church of Scientology
of Cal. v. United States, Civ. No. 79-2975 at 51-56. The order denying
intervention and the transcript of the proceedings in open court at which
the Church's motion for return of property and application for a temporary
restraining order were denied are reprinted in the appendix filed by the
Church in Nos. 79-2313 & 79-2324 as documents (Docs.) 9 and 11,
respectively. (The Church's appendix in Nos. 79-2313 & 79-2324 is
hereinafter referred to as Church App.)
After studying the matter in depth, we have determined to stay the unsealing
orders appealed in No. 79-2312, to vacate the orders denying intervention and
temporary injunctive relief appealed in Nos. 79-2313 and 79-2324,[FN2] and
to remand to the trial court for supplemental proceedings and transmission to
this court of a more particularized rationale, under guidelines discussed
below. We retain jurisdiction over the matter and order all documents at issue
here sealed pending our decision following remand.[FN3]
FN2. We vacate the orders denying intervention and temporary injunctive
relief because we treat the various means by which the Church sought to
assert its interests in the district court as having commenced a proceeding
within the trial court's ancillary jurisdiction. See text at notes 63-65,
infra. As noted in the text, infra, at note 67, we do not reach the
question whether a nonparty may ever intervene in a criminal case. For the
reasons given infra, note 63, we affirm that portion of the order appealed
in No. 79-2324 which may be read to deny on the merits immediate return of
the seized documents.
FN3. We choose to retain jurisdiction with the virtual certainty that a
simple remand would result in a second appeal regardless of the trial
judge's ultimate decision. Our purpose is twofold. First, we hope to
obviate the proliferation of motions and collateral proceedings which has
characterized the litigation of this and other issues related to these
criminal proceedings, a profusion of paper which has sorely tried the
patience of this court and the district court. Second, we seek to ensure
that the documents remain under seal until the matter is again before this
court. If upon reconsideration the district court determines not to release
any documents or if the parties determine not to contest the district
court's ultimate decision, the parties should so inform this court.
I. BACKGROUND
Owing to the litigiousness of the parties the full procedural background of
these appeals is quite complex, but the essential facts are simply stated.
Close to three years ago the government seized approximately 50,000 documents
[FN4] from two Los Angeles sites of the Church of Scientology of California. A
motion made by the Church to return the documents was dismissed by a federal
district court in California,[FN5] although various actions of the parties and
the courts in California restricted public access to the documents held by or
subject to the proceedings of that court.[FN6]
FN4. There seems to be general agreement that the number of documents
unsealed was approximately half the total seized, but exactly how many
documents were seized and how many were unsealed is unclear. Brief for
Appellants in No. 79-2312 at 10 (suggesting that 50,000 pages are still
under seal); id. at 11 (suggesting that 50,000 pages were unsealed by
order here appealed); Appellants' Emergency Application for En Banc
Rehearing in Nos. 79-2312 & 79-2313 at 1 (filed Nov. 2, 1979) (judge's
order unseals "roughly 50,000 pages"); Church's Petition for Writ of
Mandamus, In re Church of Scientology of Cal., No. 79-2318 (D.C.Cir.
filed Nov. 9, 1979) at 3 (total documents seized number approximately
48,000); Church of Scientology of Cal. v. United States, 591 F.2d 533
(9th Cir. 1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 729, 62 L.Ed.2d
729 (1980) ("Church asserts that more than 20,000 documents were seized")
(unclear whether figure represents California searches only or combined
total of California and District of Columbia searches). It suffices for our
purposes to say that the number of documents seized was very large.
FN5. The motion was made in the district court for the Central District of
California under Rule 41(e), Fed.R.Crim.P. That rule provides that:
A person aggrieved by an unlawful search and seizure may move the district
court for the district in which the property was seized for the return of
the property on the ground that he is entitled to lawful possession of the
property which was illegally seized. . . . If the motion is granted the
property shall be restored and it shall not be admissible in evidence at
any hearing or trial. If a motion for return of property is made or comes
on for hearing in the district of trial after an indictment or information
is filed, it shall be treated also as a motion to suppress.
The California district court's memorandum decision finally dismissing the
motion was entered July 5, 1978. Church of Scientology of Cal. v. United
States, No. CV-77-2565-MML (C.D.Cal. Jul. 5, 1978), Hubbard App. at 37.
FN6. For two months after the seizure the seized material remained in the
exclusive custody of the government. On August 8, 1977 the California
district court to whom the Church's Rule 41(e) motion had been assigned
ordered the seized material "impounded" by the clerk of that court while an
appeal was taken in the District of Columbia courts from a holding in the
Church's favor concerning the lawfulness of a search executed the same day,
and as part of the same investigation, on the premises of the Founding
Church of Scientology in the District of Columbia. The District of Columbia
district court decision, In re Search Warrant Dated July 4, 1977, Misc. No.
77-151 (D.D.C. Aug. 24, 1979), Church App. Doc. 12, held that a warrant
"virtually identical" (Brief for Appellee in No. 79-2312 at 1, n.1; Brief
for Appellee in Nos. 79-2313 & 79-2324 at 1 n.1) to the warrant
underlying the California searches was facially unconstitutional. The
California district judge, reasoning that "the principle of collateral
estoppel precludes further litigation on the constitutionality of the
warrant here at issue," United States v. Various Documents, No. CV-77-2565-
MML, slip op. at 1 (C.D.Cal. Aug. 8, 1977), Hubbard App. at 1, entered an
order requiring the return to the Church of the materials seized in
California, id. at 2, Hubbard App. at 2, but stayed this order pending
appeal from the District of Columbia district court decision and ordered
the materials "impounded" in the interim. Id.
When a panel of this court reversed the finding of facial invalidity, In
re Search Warrant Dated July 4, 1977, 572 F.2d 321 (D.C.Cir.1977), cert.
denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978), the
California district court reopened the Rule 41(e) proceedings and,
rejecting several arguments made by the Church, ordered the previously
impounded materials returned to the government, permitting limited
governmental use of the materials but prohibiting their disclosure to the
public. Church of Scientology of Cal. v. United States, No. CV-77-2565-
MML (C.D.Cal. Apr. 4, 1978), Hubbard App. at 6, 30. Shortly thereafter the
government voluntarily returned to the Church approximately half the
documents seized in the California searches. (See note 17, infra.) (The
documents selected by the government for return to the Church are sometimes
hereinafter referred to as the "returned" documents.)
Apparently because the parties wished to preserve an accurate record of the
documents seized, either for appeal of the Rule 41(e) determination or
for use in collateral proceedings, the government and the Church entered
into a stipulation (the "surrender stipulation," Hubbard App. at 35), on
the eve of the documents' partial return, providing for the surrender under
seal to the district court clerk in California of one copy of the documents
to be returned. There is some dispute about which documents were actually
surrendered under this arrangement, but it appears that at some point the
California district court clerk obtained custody over copies of both the
"returned" and the "non-returned' documents. The dispute's importance
derives from a subsequent stipulation and order (the "transfer stipulation,
" Hubbard App. at 88) transferring to the custody of the District of
Columbia district court the documents held by the clerk of the California
district court. The documents so transferred were "to remain sealed" except
to "be viewed by Judge Richey . . . in the pre-trial suppression hearings.
" Id. The stipulation described the documents to be transferred and kept
under seal as follows: "the documents seized pursuant to the two Los
Angeles search warrants, which are the subject of the above-captioned case
(the 41(e) motion), and which are currently kept sealed in the custody of
the Clerk of this (the California) Court pursuant to the (surrender)
stipulation . . . ." Id. In fact what was transferred from the district
court comprised not only the returned documents but all documents seized.
Transcript of Proceedings in United States v. Hubbard, Cr.No. 78-401
(D.D.C.) (Tr.) Aug. 17, 1979 at 15-16 (government making this assertion).
Thus the question is posed whether all documents actually transferred were
subject to the sealing stipulation and order.
We find as a matter of law that the "surrender" and "transfer" stipulations
governed only the terms of custody of the returned documents and that the
stipulations did not, by themselves, oblige the District of Columbia
district court to retain the non-returned documents under seal. Thus any de
jure seal on these documents must arise out of the independent actions of
the parties and of the district court in the District of Columbia, and the
propriety of the court's unsealing order will be considered without regard
to considerations of comity that may be appropriate where the order of a
coordinate jurisdiction is involved. See generally Covell v. Heyman, 111
U.S. 176, 182, 4 S.Ct. 355, 358, 28 L.Ed. 390 (1884).
Some two weeks after the surrender stipulation was entered, but months
before the transfer stipulation, the California district court disposed of
some remaining issues in the Rule 41(e) proceeding and removed the
restrictions previously placed on the government's use of seized
materials. Church of Scientology of Cal. v. United States, No. CV-77-
2565-MML slip op. at 21 (Jul. 5, 1978), Hubbard App. at 37, 57. A stay of
this order was sought and denied in the circuit court but in response to a
separately filed (July 12, 1978) application, the circuit court entered an
order prohibiting the government, "pending appeal," from publicly
disclosing the documents. Church of Scientology of Cal. v. United
States, No. 78-2434 (9th Cir. Oct. 30, 1978), Church App. Doc. 4. The
order, which originally permitted the government only to present the seized
materials to federal grand juries, was modified December 13, 1978 to permit
use of the materials "at resulting criminal proceedings." Id. (Dec. 13,
1978), Hubbard App. at 66. On February 22, 1979, the Ninth Circuit
dismissed the Church's appeal for want of jurisdiction. Church of
Scientology of Cal. v. United States, 591 F.2d 533 (9th Cir. 1979), cert.
denied, 444 U.S. 1043, 100 S.Ct. 729, 62 L.Ed.2d 729 (1980).
The Church and the individual defendants here argue that because the Ninth
Circuit's orders placed restrictions on the documents' use "pending
appeal," the orders survived that court's dismissal for want of
jurisdiction and continued at least until certiorari was denied. We
disagree. We think that "pending appeal" meant pending appeal from the
order already entered in the district court on the basis of which the
circuit court's jurisdiction depended and did not include the filing of a
petition for certiorari, even though a circuit court may stay the issuance
of its mandate until a petition for certiorari is denied. See
Fed.R.App.P. 41(b). Moreover, we read the orders to address the
government's use of the documents and not the court's; the propriety of a
court's unsealing order once the materials were properly received in a
"resulting criminal proceeding" must thus be determined independently.
Assuming those documents not required to be surrendered were in fact given
over to the California district court clerk at about the time the
"surrender stipulation" was entered, there would seem to be a period from
June 20, 1978 or at least from July 5, 1978 (when the district court
indicated its wish not to exercise further control over the documents)
until July 20, 1979 when the non-returned documents may not technically
have been under seal. But given the confusion surrounding the initial
stipulation, their actual accessibility to the public is questionable. See
Tr. Jul. 20, 1979 at 6015, 6018 (government apparently asserting that all
documents were kept by clerk in separate safe under seal). The parties have
presented nothing to show that the public was in fact permitted access to
the documents held by the California district court.
*298 **404 More than two years after the seizures a District of Columbia
grand jury returned indictments against eleven officials or employees of the
Church. Seeking to suppress the seized documents as the fruits of an illegally
executed "general" search, the nine defendants present before the court [FN7]
urged Judge Richey, to whom the criminal case was assigned, to examine a
complete set of the documents seized. Because they were needed for this
purpose, copies of all documents held by the district court in California were
transferred to the custody of the district court here. From the discussions
preceding transfer it is clear that everyone concerned was under the impression
that all documents to be transferred would be held under seal by the clerk of
this court.[FN8] No separate written sealing order was entered, but before the
transfer took place, Judge Richey entered repeated oral sealing orders,[FN9]
although usually with the caveat that *299 **405 he retained the right to
"unseal" the documents at a later time.[FN10]
FN7. Extradition proceedings had been initiated in Great Britain against
the two other individuals accused who were not in this country. Those
proceedings culminated with an unsuccessful appeal by the accused to the
House of Lords and we take notice of the fact that they have now been
brought before the district court on the indictment returned by the
District of Columbia grand jury.
FN8. We find determinative the following exchange, occurring during the
course of the taking of testimony in connection with the suppression
motion:
MR. BANOUN (Assistant United States Attorney): . . . It was after the 41(e)
proceeding was completed that the government and the petitioner voluntarily
entered into a stipulation to keep a copy of all the documents under seal,
in the custody of the clerk of this court.
THE COURT: In the transfer to our court in Washington, there are no
restrictions on that transfer, are there, except they are-
MR. BANOUN: Sealed.
MR. BOUDIN: They are sealed, and they are for your view.
THE COURT: All right.
MR. BANOUN: It is one set, one copy of all the documents seized.
THE COURT: And that is the only place where you have, anybody has-
MR. BANOUN: A complete copy. It is not the only place where anybody has it,
because the defense-not the defense, but the surety has (a complete copy).
Tr. Jul. 20, 1979 at 6012-14.
FN9. It appears that the returned documents were offered and accepted for
review before actual copies of those documents were presented to the court.
Tr. Jul. 18, 1979 at 5425-28:
THE COURT: Can we have an understanding, Mr. Hirschkop-
MR. HIRSCHKOP (counsel for the defendants Heldt and Snider): Yes.
THE COURT:-between you and your co-counsel that those documents may be made
a part of the official record of the evidence in these three suppression
motions?
MR. HIRSCHKOP: Under seal, yes, sir.
THE COURT: Subject to the same caveat the Court received all the others.
MR. HIRSCHKOP: Well, I am a little hesitant to give the Court 20,000
documents and then say or have the Court say, "Without consulting you or
giving you a chance to be heard, I will open the whole thing up."
I trust the Court's good faith, but the Court may not understand the point
we have at the time the Court should or should not reach such an opinion.
These are 20,000 personal documents from the persons seized. Again, it
comes back to the problem. Shall we force them to surrender all their
rights to privacy by opening everything up in a public record in order to
protect their right to privacy? So I will make them available to the
prosecution voluntarily.
THE COURT: And part of the record in this case?
MR. HIRSCHKOP: Yes.
THE COURT: All right.
MR. HIRSCHKOP: All right.
THE COURT: Is there any other counsel who will object to that procedure on
the defense side? If so, state it now. Otherwise, your right to object is
forgiven and forever lost for naught. By your silence I-
MS. HETHERTON (Assistant United States Attorney): Your Honor-
THE COURT: Let me ask Mr. Banoun as chief counsel for the prosecution.
MR. BANOUN: I'm not chief counsel.
THE COURT: Well, I treat you as such, like I treat Mr. Hirschkop as chief
counsel for the defense.
THE COURT: Mr. Banoun, will you accept them as part of the record in this
case?
MR. BANOUN: We have no objection to having-
THE COURT: All right.
MR. BANOUN: Also the documents which we have kept as part of the court file
as well.
THE COURT: Any objection?
MR. BANOUN: So that every-
THE COURT: Any objection to that addition to the documentary evidence? I am
going to be really popular with my clerk. You can see that now, can't you?
THE CLERK: We have included all the documents seized at this point?
THE COURT: That is correct.
The general understanding appears to have been that the stipulated transfer
would provide the trial court with a complete set of the seized documents.
FN10. One rationale offered contemporaneously by the district judge for
his repeated caveat that he retained discretion to unseal the documents was
as follows:
(T)he Court is going to seal these documents now, with the caveat that they
can be opened at the discretion of the Court. Why? Because the Court is
going to have to make reference to them in making findings, there is no
question about that, as to whether or not this seizure was proper.
And the Court feels that while it has restricted the government at this
particular stage they are entitled to know why I have done it. And the
public also is entitled to know why I have done it.
Also, since the six attacks on the warrant and the seizure and the search,
broadly stated and specifically stated, are complex and raise difficult
issues, and the Court has endeavored, to the best of its ability, to extend
the defense every conceivable opportunity it concedes proper, to let them
put on any and all evidence that will be of assistance to the Court as well
as argue.
But that does not mean that the government has had no rights, either. I am
just suggesting that I think I understand the law about search and seizure
pretty well, not that I cannot be educated further. All of us lawyers and
judges have a lot to learn, and this judge is no exception.
So with that let's proceed, Mr. Banoun.
Tr. Jul. 19, 1979 at 5868-69 (emphasis supplied).
The legal consequence of the position taken by the defendants in pressing the
full set of documents upon the trial judge during the suppression hearing is
that the documents became part of the "record" of the case.[FN11] We think this
conclusion is consistent **406 *300 with the contemporaneous understanding
of the parties and the district court.[FN12] However, only a small number of
the documents were referred to individually by nature or content by either
witnesses in the suppression hearing or by the trial judge in his ultimate
decision on the motion.[FN13] It is in fact unclear whether and to what extent
the trial judge examined the documents before he denied defendants' suppression
motion.[FN14]
FN11. Fed.R.App.P. 10(a); United States v. Ross, 321 F.2d 61, 65
n.2 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123
(1963); Administrative Office of United States Courts, Manual for Clerks of
United States District Courts ss 201.1, 201.2(F)(1) (1978), ch. 13, Ex. 2
at 4-5 (1954) (classifying exhibits as "auxiliary case records"), cited in
United States v. Mitchell, 551 F.2d 1252, 1259 & n.28 (D.C. Cir. 1976),
rev'd on other grounds sub nom. Nixon v. Warner Communications, Inc.,
435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Whether the documents
were or were not technically "received" in evidence is quite beside the
point. For example, documentary materials offered but excluded by a trial
judge on evidentiary grounds can be part of the "record" at least for
purposes of appeal of the evidentiary ruling. 9 Moore's Federal Practice P
210.04(3) at 10-18 (1980), citing Chicago & E. Ill. R.R. v. Southern
Ry., 261 F.2d 394, 402 (7th Cir. 1958); Texas & Pac. Ry. v. Buckles, 232
F.2d 257, 261 (5th Cir.), cert. denied, 351 U.S. 984, 76 S.Ct. 1052, 100
L.Ed. 1498 (1956). Nevertheless, to state that materials are part of the
record of the case does not answer the question whether they are or should
be public. This question we address below. Depending on the circumstances,
technical receipt in evidence may or may not weigh heavily in determining
the answer to this question.
FN12. See exchange quoted supra, note 9.
FN13. The parties inform us that only 74 of the documents were used in the
examination of witnesses at the suppression hearings. Reply Brief for
Appellant in Nos. 79-2313 & 79-2324 at 3. The trial judge described only
a handful in his memorandum opinion. United States v. Hubbard, 493
F.Supp. 209 at 231 (D.D.C.1979), Hubbard App. at 104, 145 (Red Box Data
Information Sheet); Id. at 232, Hubbard App. at 146 (Government exhibit
111); Id. at 233, Hubbard App. at 148 ("Re: Herb").
An issue is made by the government of the admission in evidence at the
suppression hearing of "an inventory breakdown" and a "computer printout"
which were prepared in conjunction with a study conducted on defendants'
behalf of the seized materials. The "inventory breakdown" classified 23,000
seized documents as within or without the warrant and grouped them into
several categories. The "computer printout," comprising nine volumes, was
apparently the basis for the "inventory breakdown." It contained a separate
entry for each of the documents studied and an indication of whether it was
within or without the warrant. We have examined both the "inventory
breakdown" and the "computer printout" and do not find them revealing of
the content of the documents surveyed.
FN14. Judge Richey decided, inter alia, that overbreadth of the search
would not by itself taint the entire seizure, United States v. Hubbard,
493 F.Supp. 209 at 221-224 (D.D.C.1979), Hubbard App. at 126-31, and that
documents seized within the scope of the warrant, id., or in plain
view, id. at 41, Hubbard App. at 144, during the course of the search
need not be suppressed. He also determined, relying on his own view of the
premises and the statements of witnesses present at the search, that the
physical scope of the search was not unreasonable, id. at 31-36, Hubbard
App. at 134-39, and that the government made reasonable efforts to limit
the search. Id. at 36-44, Hubbard App. at 139-44. Finally, he found that
none of the documents upon which the government intended to rely for its
case-in-chief were outside the scope of the warrant. Id. 47-48, Hubbard
App. at 150-51. Under this rationale examination of all the documents
seized may not have been necessary and there is no indication in the
memorandum opinion that such an examination was undertaken. However, when
the unsealing order was challenged and counsel for one defendant suggested
to the court:
You are opening up now 12,000 to 15,000 documents that you have never read.
You have read a handful of them; not even one-tenth, not even one-hundredth
of one per cent of those documents;
Judge Richey retorted:
That is a gratuitous statement which you have made and which I am not going
to accept, and I don't think it is proper for you to make, because you
don't know what I have read.
Tr. Oct. 26, 1979 at 56-57.
Shortly after entry of the decision upholding the search, the government and
the defendants negotiated a disposition of charges and a stipulated record
consisting of approximately 200 documents. As part of the negotiations the
government agreed not to disseminate publicly any documents seized which were
not part of the stipulated record. The trial court enforced the negotiated
disposition; [FN15] the case was tried to the *301 **407 bench on the
stipulated record and guilty verdicts were returned.[FN16]
FN15. The defendants had moved for an order compelling the government
specifically to perform a plea agreement. The court found that the
government had in fact tendered a plea agreement, that the defendants had
accepted the offer, and that the government would be bound by the offer
made. United States v. Hubbard, Cr.No. 78-401 (D.D.C. Oct. 8, 1979),
Hubbard App. at 157. The offer found by Judge Richey to have been made
expressly contemplated appellate review of the convictions. Id. at 10,
Hubbard App. at 166. As one defense counselor stated to Judge Richey on the
day the verdicts were rendered, "the whole point of the plea agreement-the
whole point of the plea agreement was to preserve for the defendants an
appeal on the legality of the search and seizure." Tr. Oct. 28, 1979 at 8,
Hubbard App. at 176. The trial judge's own understanding was the same.
Id. at 21, Hubbard App. at 189. The agreement enforced expressly
provided that the government could not make available either to the press
or to private individuals copies of documents seized in California (apart
from those contained in the stipulated record). United States v.
Hubbard, Cr.No. 78-401, slip op. at 11 (D.D.C. Oct. 8, 1979), Hubbard App.
at 167.
FN16. Each of the nine defendants was found guilty of one count of the
indictment. Seven were found guilty under Count XXIII, charging conspiracy
to obstruct justice; one was found guilty under Count I, charging
conspiracy illegally to obtain government documents; and one was found
guilty under Count XVII, charging theft of government property. Although
the point is made in text and notes below, text at notes 21-22 and notes
21 & 22, it is worth emphasizing that the documents at issue in this appeal
do not include those documents made a part of the stipulated record on
which these convictions were based.
After the disposition agreement was enforced but one day before the guilty
verdicts were entered, the trial judge issued an order making publicly
available all documents seized except those that the government had earlier
"returned" to the Church as unnecessary to the prosecution,[FN17] if they were
not also used by the defendants in the examination of witnesses at the
suppression hearing.[FN18] When this order was filed, the Church sought to
intervene in the criminal case to "protect the constitutional rights of the
Church and its members in the privacy of their papers;" [FN19] it also filed a
motion captioned as a separate civil proceeding, seeking immediate return of
the seized documents and an order temporarily restraining the court clerk from
disseminating or disclosing the documents to anyone pending a decision on the
motion for return.[FN20] The individual defendants moved the court for
reconsideration. These motions were denied. Applications by the Church and the
individual defendants for stay of the unsealing order and a petition by the
Church for mandamus relief were denied by motions panels of this court.
Rehearing en banc of the stay applications was also denied, no judge having
called for a vote on the application for rehearing. Finally Chief Justice
Burger denied applications for stay submitted to him as Circuit Justice.
FN17. See United States v. Hubbard, 493 F.Supp. 209 at 233
(D.D.C.1979), Hubbard App. at 149 (government represented that returned
documents "were deemed unnecessary"). Although the reasons for the
documents' return are unclear, they may have been returned pursuant to
Andresen v. Maryland, 427 U.S. 463, 482 n.11, 96 S.Ct. 2737, 2749 n.11,
49 L.Ed.2d 627 (1964) (approving the return of papers "not within the scope
of the warrants or . . . otherwise improperly seized"). United States v.
Hubbard, supra, at 233, Hubbard App. at 149 (noting "this procedure
(return) was approved . . . in Andresen ").
FN18. The approximately 200 documents included in the stipulated record
are apparently among those "unsealed." However, we do not understand the
unsealing of these documents to be at issue in these appeals. See note 21,
infra.
FN19. Church's Motion to Intervene and to Vacate the Court's Order of
October 26, 1979, or in the Alternative to Stay Said Order Pending the
Determination of the Appeal Therefrom, United States v. Hubbard, Cr.No.
78-401 (D.D.C. filed Oct. 29, 1979) at 1, Church App. Doc. 7 (hereinafter
cited as Church's Motion to Intervene). The transcript of proceedings of
October 26, 1979, the day after the unsealing order was entered, reveals
that counsel for one of the defendants orally attempted to assert the
rights of the Church (which he had represented in some portion of the
California 41(e) proceedings) in opposition to the unsealing order, seeking
a stay of five to seven days to permit preparation of the appropriate
written application. Tr. Oct. 26, 1979 at 43-54, Hubbard App. 211-222. The
stay was not granted, the judge apparently reserving decision until a
written application was filed. Id. at 54, Hubbard App. at 222. The
written motion to intervene was not filed until October 29 and the 41(e)
application until November 1, several days after the judgments of
conviction were entered.
It appears that actual release of the documents was withheld until the
order denying defendants' motion for reconsideration was entered (October
30). Reply Brief for Appellants in No. 79-2312 at 19-20.
FN20. Church's Motion for Return of Property and Church's Application for
Temporary Restraining Order, Church of Scientology of Cal. v. United
States, Civ.No. 79-2975 (D.D.C. filed Nov. 1, 1979), Church App. Doc. 10.
The Church sought return of the originals and all copies held by the
government or the court
with the exception that one copy of any such documents lodged with the
Clerk of the Court shall be maintained under seal by the Clerk of the Court
for utilization in connection with any appellate proceedings, including
petitions for certiorari, by appellants in the criminal case entitled
United States v. Hubbard, et al. 78-401, and thereafter returned to
petitioner.
Church's Motion for Return of Property at 2.
Before us now are the consolidated appeals from the orders entered in the
district *302 **408 court. We do not understand either the Church or the
individual defendants seriously to contest the "unsealing" of documents which
are part of the stipulated record or which were used by defendants in the
examination of witnesses at the suppression hearing or which were referred to
by the trial judge in his opinion on the motion to suppress.[FN21] At issue,
then, is the substantive and procedural propriety of the judge's orders with
respect to the balance of the documents unsealed.[FN22]
FN21. The individual defendants do not challenge the unsealing order
insofar as it relates to the documents made a part of the stipulated
record. Public access to that group of documents does not appear to be
contested by the Church, either. Argument by the Church in the district
court was restricted to documents other than those made a part of the
stipulated record, Church's Motion to Intervene at 3-4, Church App. Doc. 7;
and although a "claim" concerning these documents is asserted by the Church
in its reply brief in this court, Reply Brief for Appellants in Nos. 79-
2313 & 79-2324 at 4, we do not think the unsealing of these documents is
actually before us.
Concerning the use of documents at the suppression hearing, the Church and
the individual defendants each acknowledged at oral argument in this court
that their positions would have been much "weaker" or "different" if all
the documents had been introduced at the suppression hearing in haec verba
or if witnesses had been extensively examined concerning the documents or
if the trial judge had engaged in a document-by-document analysis in his
consideration of the suppression motion. As a practical matter, we take
this acknowledgment to abandon claims to the propriety of unsealing at
least that group of documents which were used individually in the
examination of witnesses at the suppression hearing or in the trial judge's
opinion.
FN22. References in this opinion to "the documents at issue" are meant to
denote only those documents unsealed which were neither made a part of the
stipulated record for purposes of trial nor individually used in the
examination of witnesses at the hearing on the suppression motion nor
specifically referred to in the district court's opinion on the defendant's
motion to suppress.
II. THE PROCEDURAL RIGHTS OF THE CHURCH AND THE INDIVIDUAL DEFENDANTS
A. Introduction
At the outset we are called upon to determine the appealability of the orders
entered in the district court. In our judgment a determination of the orders'
appealability turns on a proper understanding of the interests asserted in the
district court and on the relationship of these interests to the criminal
investigation and prosecution to which they are undeniably connected. We thus
turn our attention first to an examination of the nature of the interests
asserted in the district court, the procedures attempted to be employed for the
assertion of those interests and the procedures which could have been employed,
given our assessment of the nature of the interests asserted and their
relationship to the criminal case. We then return to the question of the
appealability of the orders entered in the district court.
B. Procedural Rights of the Church in the District Court
1. The Nature of the Church's Interests
We think the kinds of interests raised by the Church in its effort to protect
the confidentiality of documents seized from its premises are sufficiently
strong to mandate the identification of some procedural mechanism by which
those interests can be presented contemporaneously to the court that controls
public access to the records of which the documents became a part. Our
evaluation of the strength of the interests sought to be asserted by the Church
derives from an analysis of the Church's asserted property rights in the seized
documents and from our recognition of the intrusion by government officials
upon the Church's privacy which a compulsory search of Church premises may
represent and the compounding of this intrusion that is worked by public access
to the contents of the documents seized.
Although we decline the Church's invitation expressly to ground the Church's
protectible interests in the Constitution's provisions, we find the kinds of
interests asserted to have some constitutional footing, both *303
**409 cognate to and supportive of, constitutional rights.[FN23] This
understanding has framed our consideration of both the procedural and the
substantive questions raised in these appeals and has contributed substantially
to the conclusions we have reached.
FN23. Cf. Afro-Am. Publishing Co. v. Jaffe, 366 F.2d 649, 654
(D.C.Cir.1966) (en banc).
[1] Prior decisions of this court have made clear that the party from whom
materials are seized in the course of a criminal investigation retains a
protectible property interest in the seized materials. "(T)he Government's
right to seize and retain certain evidence for use at trial," we have said,
" 'does not in itself entitle the State to its retention' after
trial, . . . ." [FN24] Rather, as we have declared, "it is fundamental to the
integrity of the criminal justice process that property involved in the
proceeding, against which no Government claim lies, be returned promptly to its
rightful owner." [FN25] Lawful seizure of the property, of itself, may affect
the timing of the return,[FN26] but never the owner's right to eventual
return. "(T)he district court, once its need for the property has terminated,
has both the jurisdiction and the duty to return the . . . property . . .
regardless and independently of the validity or invalidity of the underlying
search and seizure." [FN27]
FN24. United States v. Farrell, 606 F.2d 1341, 1347 (D.C.Cir.1979),
quoting Warden v. Hayden, 387 U.S. 294, 307-308, 87 S.Ct. 1642, 1650, 18
L.Ed.2d 782 (1967).
FN25. United States v. Wilson, 540 F.2d 1100, 1103 (D.C.Cir.1976),
quoted in United States v. Wright, 610 F.2d 930, 934 (D.C.Cir.1979).
FN26. Property lawfully seized may be retained pending exhaustion of its
utility in criminal prosecutions. See United States v. Farrell, 606 F.2d
at 1347. Property unlawfully seized must on motion be promptly returned,
see, e. g., Bolt v. United States, 2 F.2d 922, 923-924 (D.C.Cir.1924),
unless it be contraband or statutorily forfeit, in which event it need not
be returned at all. United States v. Farrell, 606 F.2d at 1347.
FN27. United States v. Wilson, 540 F.2d at 1103-1104. Accord, United
States v. Wright, 610 F.2d at 935; United States v. Farrell, 606 F.2d at
1343, 1347; United States v. Palmer, 565 F.2d 1063, 1065 (9th Cir.
1977); United States v. LaFatch, 565 F.2d 81, 83 (6th Cir. 1977), cert.
denied, 435 U.S. 971, 98 S.Ct. 1611, 56 L.Ed.2d 62 (1978). Jurisdiction
to return is not dependent upon whether the matter falls within the compass
of Fed.R.Crim.P. 41(e). United States v. Farrell, 606 F.2d at 1347;
United States v. Wilson, 540 F.2d at 1104.
Both in the district court here and in the Central District of California the
Church has asserted entitlement to lawful possession of the documents seized
and a corresponding right to their return.[FN28] In the court below this claim
was coupled with a request for injunctive relief retaining the documents under
seal pending their return. Otherwise, the Church argued, "the ultimate granting
of (the) motion (for return of property) will be a meaningless achievement."
[FN29] The Church continued, "The publication of the documents invades the
right of privacy of the petitioner and its members, violates the petitioner's
Fourth Amendment rights, and chills the rights of and free exercise of
religion. This damage cannot be undone by the eventual return to petitioner of
its property." [FN30]
FN28. See Church's Motion for Return of Property, Church of
Scientology of Cal. v. United States, Civ.No. 79-2975 (D.D.C. filed Nov. 1,
1979) at 2, Church App.Doc. 10.
FN29. Church's Memorandum in Support of Application for Temporary
Restraining Order, Church of Scientology of Cal. v. United States,
Civ.No. 79-2975 (D.D.C. filed Nov. 1, 1979) at 2, Church App.Doc. 10.
FN30. Id.
The privacy interests asserted by the Church in its application for injunctive
relief pending the documents' return were also asserted in its motion to
intervene in the criminal case. In those papers the Church relied not only on
the property interests which it retained in the seized documents but on the
violation of its right of privacy which release of the seized documents would
effect.[FN31] Although adverting to the confidential nature of the
information **410 *304 contained in certain of the seized documents, the
Church asserted a privacy interest not in particular documents but in the
documents as a whole,[FN32] relying, inter alia, on the fact that the materials
seized were documents, on the circumstances under which they were seized, on
the measures theretofore taken by the parties to preserve the documents'
confidentiality, and on the fact that the defendants were certain to appeal
their criminal convictions on the grounds of the lawfulness of the search and
seizure.[FN33]
FN31. Church's Motion to Intervene at 1, 4, 5, Church App.Doc. 7.
FN32. As noted above, note 21, the Church did not contest the unsealing of
the documents made a part of the stipulated record for purposes of trial.
FN33. Church's Motion to Intervene, Church App.Doc. 7.
That the fourth amendment which is now recognized to protect legitimate
expectations of privacy [FN34] can be invoked by corporations to suppress the
fruits of a search of corporate premises [FN35] demonstrates an understanding
that a compulsory search of even corporate premises may constitute an intrusion
upon privacy.[FN36] Furthermore, the Supreme Court has recognized an obligation
on the part of the courts to take some measures to protect even a suspected
criminal's privacy. The special difficulties of document searches in this
connection have been noted. In Andresen v. Maryland,[FN37] the Court stated:
FN34. Rakas v. Ill., 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d
387 (1978). See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507,
512, 19 L.Ed.2d 576 (1967); id. at 361, 88 S.Ct. at 516 (Harlan, J.,
concurring).
FN35. See G.M. Leasing Corp. v. United States, 429 U.S. 338, 353-54, 97
S.Ct. 619, 628-29, 50 L.Ed.2d 530 (1977) (fourth amendment violated by
warrantless search of company offices and seizure of books and records for
purpose of facilitating satisfaction of tax liability of company's general
manager); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392,
40 S.Ct. 182, 183, 64 L.Ed. 319 (1920) (reversing judgment of contempt
against company and individual for refusal to comply with subpoena
requiring production of company books and documents whose existence was
ascertained through unwarranted search of company office) ("(T)he rights of
a corporation against unlawful search and seizure are to be protected even
if the same result might have been achieved in a lawful way.").
FN36. G.M. Leasing Corp. v. United States, 429 U.S. at 354, 97 S.Ct. at
629. Cf. CAB v. United Airlines, Inc., 542 F.2d 394, 397 (7th Cir.
1976) (administrative inspection of regulated carriers) (avoiding fourth
amendment question by rejecting plenary inspection powers claimed by agency
to have been authorized by statute), quoting Statement of Judge Leventhal
as to Why He Would Grant Suggestion for Rehearing En Banc in Burlington
N., Inc. v. ICC, 462 F.2d 280, 288 (D.C.Cir.), cert. denied, 409 U.S.
891, 93 S.Ct. 120, 34 L.Ed.2d 148 (1972):
The items involved are internal papers that stand at the heart of
management effort, and so long as our carrier operations are rooted in
private enterprise there is a strong element of privacy in such items.
FN37. 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749, 49 L.Ed.2d 627
(1975). The trial judge relied heavily upon Andresen in his decision on
defendants' motion to suppress. United States v. Hubbard, 493 F.Supp.
209 (D.D.C.1979), Hubbard App. at 104.
We recognize that there are grave dangers inherent in executing a warrant
authorizing a search and seizure of a person's papers that are not necessarily
present in executing a warrant to search for physical objects whose relevance
is more easily ascertainable. In searches for papers, it is certain that some
innocuous documents will be examined, at least cursorily, in order to determine
whether they are, in fact, among those papers authorized to be seized. Similar
dangers, of course, are present in executing a warrant for the "seizure" of
telephone conversations. In both kinds of searches, responsible officials,
including judicial officials, must take care to assure that they are conducted
in a manner that minimizes unwarranted intrusions upon privacy.
[2] However, the value assigned by our society to protection against
governmental invasions of privacy is not measured solely by the fourth
amendment's exclusionary rule. The fourteenth amendment's protection against
arbitrary or unjustifiable state deprivations of personal liberty also prevents
encroachment upon a constitutionally *305 **411 recognized sphere of
personal privacy.[FN38] The fifth amendment's protection of liberty from
federal intrusion upon this sphere can be no less comprehensive.[FN39]
FN38. Whalen v. Roe, 429 U.S. 589, 598 n. 23, 97 S.Ct. 869, 876 n.23,
51 L.Ed.2d 64 (1977); Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 726,
35 L.Ed.2d 147 (1973). Cf. Griswold v. Conn., 381 U.S. 479, 85 S.Ct.
1678, 14 L.Ed.2d 510 (1965) (multiple constitutional sources of protectible
privacy interests).
FN39. The liberty interests protected by the fifth amendment have been
read broadly. See Bolling v. Sharpe, 347 U.S. 497, 499-500, 74 S.Ct.
693, 694, 98 L.Ed. 884 (1954) (holding District of Columbia school
segregation to violate fifth amendment's due process clause):
Although the Court has not assumed to define "liberty" with any great
precision, that term is not confined to mere freedom from bodily restraint.
Liberty under law extends to the full range of conduct which the individual
is free to pursue, and it cannot be restricted except for a proper
governmental objective.
But see Mazaleski v. Treusdell, 562 F.2d 701, 709-715
(D.C.Cir.1977) (Public Health Service commissioned officer's termination
for "unsatisfactory performance" not infringement of liberty).
Minimizing the initial intrusiveness of necessary governmental activity is one
means of serving fundamental privacy interests, but controlling broadside
disclosure of materials or information obtained by intrusive means is another.
[FN40] For example, on at least two recent occasions Congress has recognized
that the dissemination of information compounds whatever infringement of
privacy occurs when materials or information are obtained through compulsory
means.[FN41] The need for both kinds of protection has been perceived by state
legislatures as well as by the Congress.[FN42]
FN40. The public is, of course, entitled to be informed concerning the
workings of its government. That cannot be inflated into a general power to
expose where the predominant result can only be an invasion of the private
rights of individuals.
Watkins v. United States, 354 U.S. 178, 200, 77 S.Ct. 1173, 1185, 1
L.Ed.2d 1273 (1957) (footnote omitted), quoted in Doe v. McMillan, 412
U.S. 306, 330, 93 S.Ct. 2018, 2033, 36 L.Ed.2d 912 (1973) (concurring
opinion) (Congress has no general authority, through publication of report
concerning school system, to expose private lives); Tarlton v. Saxbe,
507 F.2d 1116, 1124 (D.C.Cir.1974) (FBI duty to maintain accurate criminal
records) (recognizing constitutional and common law expressions of "value
of individual privacy," which serves to "insulate individuals from
unjustifiable government interference with their private lives").
FN41. Privacy Act of 1974, 5 U.S.C. s 552a(b) (1976) (prohibiting
disclosure of personal information without consent except in certain
circumstances); Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, 18 U.S.C. s 2511(1)(c) (1976) (prohibiting all disclosure of
information obtained by unauthorized wiretap). See Gelbard v. United
States, 408 U.S. 41, 51-52, 92 S.Ct. 2357, 2362-63, 33 L.Ed.2d 179
(1972) (discussing Title III's prohibitions). See also 5 U.S.C. s
552(b)(6) (1976) (agency need not disclose under Freedom of Information
Act, personnel, medical or similar files, whose disclosure would result in
"clearly unwarranted invasion of personal privacy").
FN42. See United States Department of Justice, Compendium of State Laws
Governing the Privacy and Security of Criminal Justice Information (1975);
Note, Protecting Privacy From Government Invasion: Legislation at the
Federal and State Levels, 8 Mem.St.L.Rev. 783 (1978).
[3] Finally, although the scope of the privacy interests protected by the
Constitution differ from the privacy interests protectible under state law,
[FN43] the concept of a protectible right of privacy has found widespread
acceptance in the state law of this country,[FN44] and has been embraced both
in the District of Columbia [FN45] and in California.[ *306 **412 FN46]
Whether and to what extent the privacy interests protected by state law
may be asserted by corporate bodies is still unsettled.[FN47] However, we think
one cannot draw a bright line at the corporate structure. The public attributes
of corporations may indeed reduce pro tanto the reasonability of their
expectation of privacy, [FN48] but the nature and purposes of the corporate
entity and the nature of the interest sought to be protected will determine the
question whether under given facts the corporation per se has a protectible
privacy interest.[FN49] Moreover at least certain types of organizations
corporate or non-corporate should be able to assert in good faith the privacy
interests of their members. [FN50] Finally, whether acting for itself or on
behalf of its *307 **413 members, surely the privacy interests of a
"church" must be assessed somewhat differently from the privacy interests of
other sorts of "corporations." [FN51]
FN43. See Katz v. United States, 389 U.S. 347, 350-51, 88 S.Ct. 507,
510-511, 19 L.Ed.2d 576 (1967) (comparing fourth amendment and state law
protections of privacy); 2 Creighton L.Rev. 354 (1969) (analyzing lower
court's decision in Nader v. Gen. Motors Corp., infra note 45, in which
both federal constitutional and common law privacy interests were
asserted).
FN44. See Time, Inc. v. Hill, 385 U.S. 374, 383 n.7, 87 S.Ct. 534, 539,
17 L.Ed.2d 456 (1967) (widespread recognition of right to privacy). It has
been suggested that "the right of privacy should have a broader scope in
the government disclosure area than in the private tort situation,"
Emerson, The Right of Privacy and Freedom of the Press, 14 Harv.C.R.-
C.L.L.Rev. 334, 353 (1979).
FN45. See, e. g., Pearson v. Dodd, 410 F.2d 701, 704 (D.C.Cir.), cert.
denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465 (1969); Afro-Am.
Publishing Co. v. Jaffe, 366 F.2d at 653 (en banc); Bernstein v. Nat'l
Broadcasting Co., 129 F.Supp. 817, 831 (D.D.C.1955), aff'd, 232 F.2d
369 (D.C.Cir.), cert. denied, 352 U.S. 945, 77 S.Ct. 267, 1 L.Ed.2d 239
(1956). See also Nader v. Gen. Motors Corp., 25 N.Y.2d 560, 307 N.Y.S.2d
647, 255 N.E.2d 765 (1970) (applying District of Columbia law).
FN46. An actionable right of privacy has been recognized by California
courts for almost fifty years. See, e. g., Dietemann v. Time, Inc., 449
F.2d 245, 248 (9th Cir. 1971); Gill v. Curtis Publishing Co., 38 Cal.2d
273, 276-78, 239 P.2d 630, 632-33 (1952); Melvin v. Reid, 112 Cal.App.
285, 290-293, 297 P. 91, 93-94 (1931). Since 1972 privacy rights have been
accorded express constitutional protection in California. In that year the
state constitution was amended by referendum and now provides that among
the "inalienable rights" enjoyed by the people is the right of "pursuing
and obtaining . . . privacy." Cal.Const. art. I, s 1. According to a
statement drafted by the amendment's proponents and circulated in a state
brochure to prospective referendum voters, three of the principal
"mischiefs" at which the amendment was aimed were as follows: "(1)
'government snooping' and the secret gathering of personal information; (2)
the overbroad collection and retention of unnecessary personal information
by government and business interests; (3) the improper use of information
properly obtained for a specific purpose . . . ." White v. Davis, 13
Cal.3d 757, 775 & n.11, 120 Cal.Rptr. 94, 106 & n.11, 533 P.2d 222,
234 & n. 11 (1975). See Porten v. Univ. of San Francisco, 64 Cal.App.3d
825, 829-30, 134 Cal.Rptr. 839, 841-42 (1976); Note, The California
Constitutional Right of Privacy and Exclusion of Evidence in Civil
Proceedings, 6 Pepperdine L.Rev. 231 (1978) (arguing for the creation of
an exclusionary rule in civil proceedings to protect the constitutional
right of privacy). We have been unable to find a reported California
decision where the privacy rights (constitutional or otherwise) of
associations or corporations were determined. In Cobb v. Superior Court,
99 Cal.App.3d 543, 547 n.3, 160 Cal.Rptr. 561, 564 n.3 (1979), a California
appellate court expressly reserved the question as to corporations.
FN47. The suggestion can usually be traced to United States v. Morton
Salt Co., 338 U.S. 632, 651-52, 70 S.Ct. 357, 368, 94 L.Ed. 401 (1950)
whose rationale (see note 48, infra ) has not been as well remembered as
its language. See, e. g., First Nat'l Bank v. Bellotti, 435 U.S. 765,
778 n.14, 98 S.Ct. 1407, 1416, 55 L.Ed.2d 707 (1978); Cal. Bankers Ass'n
v. Schultz, 416 U.S. 21, 65-67, 94 S.Ct. 1494, 1519-20, 39 L.Ed.2d 812
(1974); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 184,
71 S.Ct. 624, 655, 95 L.Ed. 817 (1951) (concurring opinion). See also
Liberty Lobby, Inc. v. Pearson, 390 F.2d 489, 492
(D.C.Cir.1967) (concurring opinion).
FN48. United States v. Morton Salt Co., 338 U.S. at 651-52, 70 S.Ct. at
368 (relying on public attributes of corporations to explain their lesser
interest in privacy).
FN49. See, e. g., CAB v. United Airlines, 542 F.2d at 397-98;
Colegio Puertoriqueno de Ninas, Liceo Ponceno, Inc. v. Pesquera de
Busquets, 464 F.Supp. 761, 765 (D.P.R.1979); Socialist Workers Party v.
Attorney Gen., 463 F.Supp. 515, 524-25 (S.D.N.Y.1978) (holding association
itself has protectible privacy interests under New York law).
FN50. See Cal. Bankers Ass'n v. Schultz, 416 U.S. at 55, 94 S.Ct. at
1514 (organization may assert constitutional rights of its members);
NAACP v. Button, 371 U.S. 415, 428, 83 S.Ct. 328, 335, 9 L.Ed.2d 405
(1963) (because association directly engaged in activities claimed to be
constitutionally protected, association though a corporation may assert on
own behalf first amendment associational rights of members and lawyers);
NAACP v. Ala. ex rel. Patterson, 357 U.S. 449, 458-59, 78 S.Ct. 1163,
1169-70, 2 L.Ed.2d 1488 (1958) (association may assert members' right of
associational freedom). See generally Warth v. Seldin, 422 U.S. 490,
515, 95 S.Ct. 2197, 2213, 45 L.Ed.2d 343 (1975) (association may assert
rights of others when seeking declaratory or injunctive relief); Comm.
for Auto Responsibility v. Solomon, 603 F.2d 992, 998 n.13 (D.C.Cir.1979),
cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 599
(1980) (listing conditions of "associational standing").
FN51. Cf. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct.
143, 97 L.Ed. 120 (1952) (church property dispute) (Court's prior decision
"radiates . . . a spirit of freedom for religious organizations, an
independence from secular control or manipulation"); construing Watson
v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1872); Cantwell v.
Conn., 310 U.S. 296, 306, 60 S.Ct. 900, 904, 84 L.Ed. 1213 (1940) ("Even
the exercise of religion may be at some slight inconvenience in order that
the state may protect its citizens from injury.") (emphasis supplied).
We agree with Judge Richey that the word "religion" is no talisman, see
United States v. Hubbard, 493 F.Supp. 209 at 234, Cr.No. 78-401
(D.D.C.1979), Hubbard App. at 150, but in fact Judge Richey, for purposes
of the suppression motion, assumed the Church was a bona fide religious
organization, id. at 3, n.2, Hubbard App. at 106, and made no contrary
finding for purposes of his unsealing order. See generally Founding
Church of Scientology v. United States, 409 F.2d 1146, 1160-61 (D.C.Cir.),
cert. denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d 427 (1969) (prima
facie case of Church's religious status made out on record of that case,
where no government opposition).
[4] Because state law privacy rights are seldom litigated,[FN52] their
contours remain unclear and application of these still-evolving concepts to the
claims here stated cannot be determined by reference to already decided cases.
However, in our judgment the combination of property and privacy interests
asserted were significant enough to warrant an opportunity for the Church to
state its interests in the only forum where meaningful relief could
expeditiously have been had [FN53] and within whose supervisory discretion a
decision to foreclose public access resides.[FN54]
FN52. Gavison, Privacy and the Limits of Law, 89 Yale L.J. 421, 457
(1980) ("The relative rarity of legal actions might be explained . . . in
part because the initiation of legal action itself involves the additional
loss of privacy."). See Emerson, The Right of Privacy and Freedom of the
Press, 14 Harv.C.R.-C.L.L.Rev. 329, 348 (1979) ("The mere institution of
litigation greatly accentuates the original loss of privacy; in fact, it
normally multiplies the very effect from which relief is sought.").
FN53. By drawing upon decisions considering the right to return of seized
property we do not mean to imply that the Church's procedural rights were
dependent upon an immediate right to return of the documents at issue. See
note 63, infra. We suggest only that a proprietary interest in a document,
in combination with the privacy interests implicated by the facts and
circumstances of the seizure, may give rise to a protectible interest in
preventing indiscriminate public access to the records of which the
document has become a part.
FN54. See text at notes 78-89, infra.
2. Procedural Mechanisms for the Church's Assertion of Interest
a. Ancillary Jurisdiction
[5] Our decisions make plain that a federal trial court has ancillary
jurisdiction to hear and determine claims closely related to and arising out of
the criminal proceedings brought before it.[FN55] We think this concept of
ancillary jurisdiction is flexible enough to accommodate claims relating to
seized property, even when made by strangers to the criminal case.[FN56] We
thus conclude that the trial court had jurisdiction to hear the claims made.
However, this conclusion does not imply the proper method by which the claim
should be presented, and to that question we turn below.
FN55. United States v. Wilson, 540 F.2d at 1103 (return of property);
Morrow v. Dist. of Columbia, 417 F.2d 728, 740
(D.C.Cir.1969) (dissemination of information pertaining to accused's
arrest).
FN56. See Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51
S.Ct. 153, 157, 75 L.Ed. 374 (1931); Cogen v. United States, 278 U.S.
221, 225, 49 S.Ct. 118, 119, 73 L.Ed. 275 (1929); United States v.
LaFatch, 565 F.2d at 82-83. Although this circuit's cases on return of
property, see notes 24-27, supra, have all involved motions by defendants
in the criminal proceedings rather than motions by third parties, none has
turned on that circumstance, nor have we given it analytical significance.
Ancillary jurisdiction enables " 'a common sense solution' of the problems
courts . . . face in attempting to 'do complete justice in the
premises,' " Morrow v. Dist. of Columbia, 417 F.2d at 738, quoting 1 W.
Barron & A. Holtzoff, Federal Practice and Procedure s 23 at 94 (Wright ed.
1960).
*308 **414 b. Analysis of the Procedures Employed and Available
The means by which third parties have sought to assert their interests in
criminal cases have been manifold.[FN57] Indeed, the Church here chose to
employ three of the mechanisms which have been used, with varying success, by
other parties in other *309 **415 cases.[FN58] It first sought to
intervene in the criminal case, it then brought a motion for return of
property, accompanied by an application for an order temporarily restraining
public access to the documents at issue. Finally, it petitioned this court for
a writ of mandamus directing the district court, inter alia, "to refrain from
unsealing for public inspection" [FN59] the documents at issue.
FN57. Cent. S.C. Chapter v. Martin, 556 F.2d 706 (4th Cir. 1977), cert.
denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 771 (1978) and Cent.
S.C. Chapter v. United States Dist. Court, 551 F.2d 559 (4th Cir. 1977)
strikingly illustrate the procedural confusion that erupts when third
parties claim some interest in the conduct of criminal proceedings. Those
cases concerned a trial judge's restrictive order affecting the activities
of the press during a criminal trial. The press' appeal from this order was
dismissed because filed by a non-party. Id. at 563. Even treating the
papers on appeal as a petition for writ of mandamus, the court concluded
that relief was inappropriate under the accepted standards for issuance of
the extraordinary writ, stating that it did not through this treatment
reach the merits of the restrictive order. Id. at 562. Finally, treating
the press' district court motion for stay as having commenced an
independent action and the appeal as having been taken from denial of the
stay, the appeal was dismissed because in that court's view a summary
proceeding commenced by motion was inappropriate to the determination of
the press' claims. Id. at 565. The court suggested that an independent
action commenced by complaint might be an appropriate vehicle for the
assertion of the kinds of interests raised by the press. When an
independent action for declaratory and injunctive relief was filed and
dismissed, however, the appellate court stated its belief that "mandamus is
the proper remedy to request the relief prayed for," 556 F.2d at 707,
treated the appeal on the merits as a petition for mandamus relief and
modified the trial court's restrictive order. Id. at 708. Decisions in
two other circuits have also identified mandamus as the appropriate vehicle
for the assertion of third party interests in criminal proceedings.
United States v. Sherman, 581 F.2d 1358, 1360-61 (9th Cir. 1978);
CBS, Inc. v. Young, 522 F.2d 234, 237 (6th Cir. 1975). See also
Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 294 (2d Cir. 1979).
A different conclusion was reached in the fifth circuit, however. In
United States v. Gurney, 558 F.2d 1202 (5th Cir. 1977), cert. denied,
435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978), members of the press
sought access to "documents and exhibits, some of which were in evidence
(at the criminal trial) and some of which were only identified." Id. at
1205. When the clerk "refused access to many of these items pursuant to
oral directions of the district judge," id., the press filed with the
district judge a "Petition for Hearing and for Vacation of Restrictions on
Press and Other News Media." Id. The trial judge considered the argument
of the press and entered an order permitting inspection of those exhibits
received in evidence, id., which was subsequently entertained by the
circuit court on appeal, id. at 1206-07, a petition for writs of
mandamus and prohibition having earlier been denied. Id. at 1206 n.4.
Gurney is consistent with an approach applied in an earlier decision in
that circuit, United States v. Briggs, 514 F.2d 794 (5th Cir. 1975). In
that case the fifth circuit reviewed on appeal the denial of a pre-trial
petition, submitted to the trial judge by unindicted co-conspirators, to
expunge references to them from the indictment. The simple motion route has
also been approved by the third circuit sitting en banc. United States
v. Schiavo, 504 F.2d 1, 5 (3d Cir.) (en banc), cert. denied, 419 U.S.
1096, 95 S.Ct. 690, 42 L.Ed.2d 688 (1974). In that case non-party
newspapers had moved the trial judge to vacate a gag order he had entered
in a criminal case; the trial judge's decision on that motion was reviewed
on appeal. A proceeding by motion to the court of trial has occasionally
even been denominated "intervention" without disapproval of the invocation
of this concept in a criminal proceeding. See United States v. RMI Co.,
599 F.2d 1183, 1186 (3d Cir. 1979) and cases discussed infra note 67.
A case arising in our own circuit illustrates a third approach to the
assertion of non-party interests in criminal proceedings. In United
States v. Mitchell, 386 F.Supp. 639, 640 (D.D.C.1975) and 397 F.Supp.
186 (D.D.C.1975) members of the media seeking access to the "White House
tapes" introduced in evidence and played at trial in the "Watergate case,"
brought a "motion" under Rule 47, Fed.R.Crim.P. Id., 386 F.Supp. at
640. Upon ruling that the media lacked standing to make a motion in the
criminal case, Judge Sirica directed that the motion be treated as a
miscellaneous civil proceeding. See United States v. Mitchell, 551 F.2d
at 1256. Orders entered in that proceeding were appealed to this court
where the appeal was entertained on the merits. Id. The Supreme Court
granted certiorari and reviewing the merits of this court's decision,
reversed. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct.
1306, 55 L.Ed.2d 570. See also cases cited infra note 67.
The means by which third parties have sought to assert their interests in
state criminal proceedings have been equally various. Compare, e. g.,
Richmond Newspapers, Inc. v. Va., 448 U.S. 555, 558-563, 100 S.Ct. 2814,
2818-21, 65 L.Ed.2d 973 (1980) with State v. Simants, 194 Neb. 783, 236
N.W.2d 794 (1975), rev'd, Neb. Press Ass'n v. Stuart, 427 U.S. 539, 96
S.Ct. 2791, 49 L.Ed.2d 683 (1976). See also Gannett Co. v. DePasquale,
43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d 544 (1977), aff'd, 443 U.S.
368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) and cases cited infra, note 67.
See generally Rendleman, Free Press-Fair Trial : Review of Silence
Orders, 52 N.C.L.Rev. 127 (1973).
FN58. See note 57, supra.
Apart from the various methods employed by the Church itself, individual
former and present Church members also brought a separate class action for
injunctive relief, Doe v. Richey, Civ.No. 79-3274 (D.D.C. filed Dec. 5,
1979), alleging that members of the class were identifiably discussed in
certain of the documents unsealed, that public access to these documents
invades their privacy, infringes upon their rights of associational freedom
and free exercise of religion, and that the circumstances surrounding the
issuance of the unsealing order violated their due process rights. When all
District of Columbia district court judges recused themselves, the action
was assigned to a judge of this court, sitting as a district judge by
designation.
By memorandum opinion and order issued June 12, 1980, the complaint in that
case was dismissed for lack of jurisdiction, id. (June 12, 1980), the
court reasoning that the relief sought was in essence a writ of mandamus,
id., slip op. at 2, which could not be employed to countermand an order
of a court of coordinate jurisdiction. Id. In answer to the plaintiffs'
argument that they were left without a remedy, the court suggested that
mandamus relief in the court of appeals might be available, slip op. at 3-
4, and noted that the propriety of intervention in a criminal case was
still under consideration by this court in this case. Slip op. at 5. We
think this action and its disposition serve as an additional illustration
of the procedural confusion surrounding the assertion of third party
interests in criminal proceedings. With respect to the availability of
mandamus relief in the court of appeals our discussion infra, text at notes
60-62 and notes 60-62 is pertinent. But see note 121, infra.
FN59. Church's Petition for Writ of Mandamus, In re Church of
Scientology of Cal., No. 79-2318 (D.C.Cir. filed Nov. 9, 1979) at 2.
Of these methods we think the last employed was neither appropriate nor
adequate to the task. It is the trial court and not this court that should
engage in the initial consideration of the interests at stake, especially
where, as here, the matter is urgent and largely dependent on an extensive
record with which the trial judge is intimately familiar.[FN60] Even assuming
mandamus relief is available to non-parties in a criminal proceeding,[FN61] we
think the inevitable delay in seeking a writ and the narrow circumstances under
which it will be granted [FN62] render it inadequate to redress the
*310 **416 type of injury here alleged and mandate the identification of
some other means by which a non-party's interest may timely be presented to the
district court whose actions are alleged to affect that interest.
FN60. We have observed that while "(p)roperty which is seized in a
criminal proceeding either by search warrant or subpoena may be ultimately
disposed of by the court in that proceeding or in a subsequent civil action
(,) (i)t makes for an economy of judicial effort to have the matter
disposed of in the criminal proceeding by the judge that tried the case."
United States v. Wilson, 540 F.2d at 1104. As this court noted in its
general discussion of ancillary jurisdiction in criminal cases, "disputes
related to a single dispute should be resolved in the original forum."
Morrow v. Dist. of Columbia, 417 F.2d at 740.
FN61. The ninth, fourth and sixth circuits have recently entertained on
the merits petitions for mandamus relief brought by members of the press
whose access was barred to various aspects of criminal proceedings to which
they were not parties. United States v. Sherman, 581 F.2d at 1360-61;
Cent. S.C. Chapter v. Martin, 556 F.2d at 707; CBS, Inc. v. Young,
522 F.2d at 237. See also Martindell v. Int'l Tel. & Tel. Corp., 594
F.2d at 294. See generally Ex parte Uppercu, 239 U.S. 435, 36 S.Ct. 140,
60 L.Ed. 368 (1915) (cited in Martindell ) (employing mandamus to permit
individual not criminally charged to obtain sealed records of a criminal
trial for use as evidence in civil proceeding). The special urgency with
which the courts address restraints on the press, see In re Halkin, 598
F.2d 176, 199 (D.C.Cir.1979), may explain why in each of these cases the
merits of the non-party's mandamus petition were fully considered and no
attention was given to devising a means by which the interests at stake
might first have been addressed to the district court judge.
FN62. The availability of the extraordinary writ of mandamus is
traditionally extremely limited. Kerr v. United States Dist. Court, 426
U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976); Bankers
Life & Cas. Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed.
106 (1953).
Although the Supreme Court in Schlagenhauf v. Holder, 379 U.S. 104, 109-
12, 85 S.Ct. 234, 237-39, 13 L.Ed.2d 152 (1964) and LaBuy v. Howes
Leather Co., 352 U.S. 249, 257-60, 77 S.Ct. 309, 314-15, 1 L.Ed.2d 290
(1957) and this court in Colonial Times, Inc. v. Gasch, 509 F.2d 517,
524 (D.C.Cir.1975) have expressed a willingness to employ the writ in an
advisory capacity to answer important questions of first impression and in
a supervisory capacity to remedy certain classes of error not traditionally
thought remediable by mandamus, this willingness cannot be read
expansively. See Will v. United States, 389 U.S. 90, 99-107, 88 S.Ct.
269, 275-80, 19 L.Ed.2d 305 (1967); Nat'l Right to Work Legal Defense v.
Richey, 510 F.2d 1239, 1242 (D.C.Cir.), cert. denied, 422 U.S. 1008, 95
S.Ct. 2631, 45 L.Ed.2d 671 (1975). But see In re Halkin, 598 F.2d at
199-200. To come to another conclusion would risk dilution of the
extraordinary nature of the writ of mandamus and alteration of the proper
functioning of trial and appellate jurisdiction. This is not to suggest
that mandamus should not be available or continue to be available in
extraordinary circumstances: to cure abuses of discretion; to answer novel
and important questions of law; or, of course, to prevent the thwarting of
appellate review. See Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26,
63 S.Ct. 938, 941, 87 L.Ed. 1185 (1943). But see Helstoski v. Meanor,
442 U.S. 500, 505, 99 S.Ct. 2445, 2448, 61 L.Ed.2d 30 (1979) (mandamus
unavailable when alternative remedies exist); Will v. United States, 389
U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305 (narrow availability of mandamus in
criminal proceedings).
Nevertheless, because of the writ's extraordinary nature, this court's
earlier denial, without statement of reasons, of the Church's petition for
mandamus, In re Church of Scientology of Cal., No. 79-2318 (D.C.Cir.
Nov. 21, 1979), has no bearing on our decision of these appeals. See
Hospes v. Burmite Div. of the Whittaker Corp., 420 F.Supp. 806, 809-10
(S.D.Miss.1976). See also Hoffman v. Blaski, 363 U.S. 335, 340 n.9, 80
S.Ct. 1084, 1088, 4 L.Ed.2d 1254 (1960).
Of the two other methods by which the Church attempted to assert its
interests, we think the motion for return of property and the accompanying
application for temporary injunctive relief most closely approximated a proper
means by which the trial court's ancillary jurisdiction could have been invoked
by the Church to present its claims to retain the documents under seal.[FN63]
In our view the Church could have proceeded by simple motion, served on the
parties in the criminal case, under the caption of that case.[FN64] We think
such a motion would have served the Church's interests adequately and we treat
the Church's efforts in the district court as having commenced such a
proceeding.[FN65]
FN63. The motion for return of property was dismissed
as against the Clerk of the United States District Court for the District
of Columbia on the ground that Rules 3 and 8(a) (Fed.R.Civ.P.) have
not been complied with; and, furthermore, because there is no viable claim
set forth in any of the papers, nor can the Court conceive that there could
be, against the Clerk of this Court.
Transcript of Proceedings, Church of Scientology v. United States, Civ.
No. 79-2975, Nov. 2, 1979 at 56, Church App. Doc. 11. We do not understand
the Church to appeal the district court's dismissal of the clerk as a party
to its motion, but insofar as the Church contests that portion of the
district court's order that may be read to deny on the merits immediate
return of the seized documents, we affirm, because the evidentiary utility
of the seized documents has not yet been exhausted. United States v.
Wilson, 540 F.2d at 1103-04. First, at least copies of the documents may
be needed for review of the defendants' criminal conviction. Second, the
charges pending against the two other individuals remain to be prosecuted.
We do not suggest that the government may, by selective prosecution or
otherwise, prolong in bad faith its retention of seized material, but this
case does not hint of such purpose.
FN64. See Cogen v. United States, 278 U.S. at 225, 49 S.Ct. at 119.
Despite its criminal caption this motion, and the proceeding commenced by
it, are civil in nature.
FN65. Given this treatment, a statement now of the precise procedural
mechanism the Church could have employed as an original matter is not
strictly necessary. However, we offer our views for the guidance of the
parties and the district court in future cases presenting similar facts.
But see note 121, infra.
It has long been recognized that a summary proceeding initiated simply by
motion to the court of trial is ordinarily suitable for the purpose of
asserting an interest in the ultimate disposition of property seized in a
criminal proceeding.[FN66] We now hold that it *311 **417 is also
appropriate for the purpose of the presumptive owner's assertion of interest in
maintaining the confidentiality of documents so seized.
FN66. See Go-Bart Importing Co. v. United States, 282 U.S. at 355,
51 S.Ct. at 157 (approving summary procedure for determination of claim
to seized papers); Cogen v. United States, 278 U.S. at 225, 49 S.Ct. at
119 (same); Bolt v. United States, 2 F.2d at 923-24 (reversing denial of
motion for return of property illegally seized); United States v.
Wilson, 540 F.2d at 1103 (same) (summary nature of proceeding not
addressed).
"Summary" proceedings by definition are those conducted "in a prompt and
simple manner." Black's Law Dictionary 1084 (5th ed. 1979). See N. H.
Fire Ins. Co. v. Scanlon, 362 U.S. 404, 406-07, 80 S.Ct. 843, 845, 4
L.Ed.2d 826 (1960). For two reasons a full-scale evidentiary hearing might
not in fact be permitted under a proceeding within the criminal trial
court's ancillary jurisdiction. First, this court has concluded that a
criminal trial court's ancillary jurisdiction is limited to circumstances
where the claim is determinable without a substantial new fact-finding.
Morrow v. Dist. of Columbia, 514 F.2d at 740. Second, under some
circumstances the holding of an evidentiary hearing may threaten the kind
of disruption of or delay in the progress of the criminal trial that the
courts have consistently viewed with disapprobation. E. g., DiBella v.
United States, 369 U.S. 121, 129, 82 S.Ct. 654, 659, 7 L.Ed.2d 614
(1962) (appeal unavailable from denial of pre-indictment motion to
suppress); Cobbledick v. United States, 309 U.S. 323, 325-26, 60 S.Ct.
540, 541-42, 84 L.Ed. 783 (1940) (appeal unavailable from denial of motion
to quash grand jury subpoena duces tecum ); Cogen v. United States, 278
U.S. at 228, 49 S.Ct. at 120-21 (appeal unavailable from denial of post-
indictment motion to suppress).
Although as a practical matter a proceeding within the trial court's
ancillary jurisdiction may be the only truly effective means of protecting
the kinds of interests here asserted, we think procedural due process does
not require that these interests be explored in a full-scale evidentiary
hearing. See N. H. Fire Ins. Co. v. Scanlon, 362 U.S. at 409-10, 80
S.Ct. at 847 ("It is true that courts have sometimes passed on ownership of
property in their custody without a plenary proceeding, where, for
illustration, such a proceeding was ancillary to a pending action or where
property was held in the custody of court officers, subject to court orders
and court discipline."), citing Go-Bart Importing Co. v. United States,
282 U.S. at 355, 51 S.Ct. at 157; Gannett Co. v. DePasquale, 43
N.Y.2d at 381, 401 N.Y.S.2d at 762-63, 372 N.E.2d at 550, aff'd, 443
U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (dictum) ("(C)ourts should of
course afford interested members of the news media an opportunity to be
heard, not in the context of a full evidentiary hearing, but in a
preliminary proceeding adequate to determine the magnitude of any genuine
public interest (in access to a suppression hearing).") See generally
Parham v. J. L., 442 U.S. 584, 608 n.16, 99 S.Ct. 2493, 2507 n.16, 61
L.Ed.2d 101 (1979) (emphasizing flexibility of due process) ("(T)here is no
requirement as to exactly what procedures to employ whenever a traditional
judicial type hearing is mandated . . . ."); Cafeteria & Restaurant
Workers Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6
L.Ed.2d 1230 (1961) (similar); Friendly, "Some Kind of Hearing," 123
U.Pa.L.Rev. 1267, 1282-87 (1975). But see United States v. Eisner, 533
F.2d 987, 994 (6th Cir.), cert. denied, 429 U.S. 919, 97 S.Ct. 314, 50
L.Ed.2d 286 (1976) (dictum) (better to hold evidentiary hearing before
entering exclusionary order in criminal case); United States ex rel.
Lloyd v. Vincent, 520 F.2d 1272, 1275 (2d Cir.), cert. denied, 423 U.S.
937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975) (dictum) (same); Note, All Courts
Shall Be Open: The Public's Right to View Judicial Proceedings and
Records, 52 Temp.L.Q. 311, 332 (1979) (arguing for brief evidentiary
hearing before exclusionary order is entered in criminal case, recognizing
expense and delay to be caused).
The availability of this ancillary, summary proceeding and our treatment of
the Church's efforts as having commenced such a proceeding make it unnecessary
either to decide the procedural propriety of the methods in fact employed by
the Church in its efforts in the district court to retain the documents under
seal, or to address the question whether one may ever intervene in a criminal
case.[FN67] Furthermore, because we *312 **418 think the Church was in
fact heard on the merits in its efforts to retain the seized documents under
seal,[FN68] and because the district court's rationale for denying relief,
insofar as it can be ascertained on this record, turned at least in part on the
merits of the interests asserted,[FN69] we treat the orders appealed by the
Church as having *313 **419 reached the merits and will consider the
remainder of the issues raised by those appeals accordingly.
FN67. Federal courts have frequently permitted third parties to assert
their interests in preventing disclosure of material sought in criminal
proceedings or in preventing further access to materials already so
disclosed. See, e. g., United States v. Nixon, 418 U.S. 683, 692, 94
S.Ct. 3090, 3099, 41 L.Ed.2d 1039 (1974) (President, a nondefendant, may
appeal denial of motion to quash post-indictment subpoena duces tecum
directed to him, compelling production of records of certain presidential
meetings); Gravel v. United States, 408 U.S. 606, 608 n.1, 92 S.Ct.
2614, 2619, n.1, 33 L.Ed.2d 583 (1972) (noting that district court had
permitted Senator to intervene in proceeding on legislative assistant's
motion to quash grand jury subpoena and that circuit court had permitted
Senator to appeal from denial of motion to quash); Perlman v. United
States, 247 U.S. 7, 12, 38 S.Ct. 417, 419, 62 L.Ed. 950 (1918) (owner may
intervene to assert property and constitutional interests in preventing
release to government, for purposes of grand jury investigation, of
exhibits introduced and impounded in civil case); In re Grand Jury
Applicants, 619 F.2d 1022 (3d Cir. 1980) (employer may appeal denial of
motion brought as intervenor to quash grand jury subpoenas ad testificandum
served on employees); United States v. RMI Co., 599 F.2d at 1186-87
(corporation may appeal denial of motion for protective order brought as de
facto intervenor to prevent pre-trial disclosure to defendants of corporate
books and records previously disclosed by subpoena to grand jury which
indicted defendants). See also In re 1975-2 Grand Jury Investigation,
566 F.2d 1293, 1294-95, 1296 & n.6, 1301 (5th Cir.), cert. denied, 437
U.S. 905, 98 S.Ct. 3092, 57 L.Ed.2d 1135 (1978) (dismissing as
nonappealable district court's order permitting party with no apparent
ownership interest in documents to intervene in proceedings begun with
purpose to disclose to another district court documents used in terminated
grand jury investigation); Ill. v. Sarbaugh, 552 F.2d 768, 772-73 (7th
Cir.), cert. denied, 434 U.S. 889, 98 S.Ct. 262, 54 L.Ed.2d 174
(1977) (permitting defendants in terminated criminal proceeding to
intervene in motion brought by state for disclosure to it of grand jury
transcripts). These assertions of interest have sometimes been denominated
"intervention," Perlman v. United States, supra; Ill. v. Sarbaugh,
supra; see In re Grand Jury Applicants, supra, United States v. RMI
Co., supra, and the intervention criteria of the Federal Rules of Civil
Procedure have occasionally been applied. Ill. v. Sarbaugh, supra. See
In re 1975-2 Grand Jury Investigation, supra.
Both the language and rationale of United States v. RMI Co., supra,
suggests that under the circumstances of this case the Church should be
permitted to intervene to assert its interests in denying public access to
the documents at issue. In that case the third circuit concluded:
(I)t is settled law that persons affected by the disclosure of allegedly
privileged materials may intervene in pending criminal proceedings and seek
protective orders, and if protection is denied, seek immediate appellate
review.
Id., 599 F.2d at 1186. That civil intervention rights were historically
absolute for those who had an interest in the property held in the custody
or subject to the control or disposition of the court, 3B Moore Federal
Practice P 24.09(1) (1980), is also suggestive of this conclusion.
However, whether, when and for what purposes intervention eo nomine is or
should be permitted in criminal proceedings is still a matter of some
doubt. Cent. S. C. Chapter v. United States Dist. Court, 551 F.2d at
563-65 (dismissing appeal of order restricting activities of press during
conduct of criminal trial) ("nothing in the criminal law or rules permit(s
press) to intervene"). See Gannett Pac. Corp. v. Richardson, 59 Haw.
224, 235, 580 P.2d 49, 57-58 (1978) (press may not intervene to protest
closure of portion of preliminary hearing in criminal case); State v.
Simants, 194 Neb. at 788, 236 N.W.2d at 798, rev'd on other grounds sub
nom., Neb. Press Ass'n v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49
L.Ed.2d 683 (error to have permitted press to intervene to protest pre-
trial gag order); State v. Ervin, 38 N.C.App. 261, 248 S.E.2d 91
(1978) (no error to have permitted post-trial intervention by non-party
asserting interest in seized property); State v. Bianchi, 92 Wash.2d 91,
593 P.2d 1330 (1979) (error to have permitted non-party to intervene to
protest gag order).
FN68. The Church's position on the merits of the unsealing order was
argued to the trial judge in open court immediately after the decision was
announced, Tr. Oct. 26, 1979 at 43-45, Hubbard App. at 211-13, and again in
its motion to intervene, supra, note 19 (which was filed while Judge
Richey informally stayed his unsealing order), and finally in its motion
for return of property, supra, note 20, and in oral argument on that
motion. Transcript of Proceedings, Church of Scientology of Cal. v.
United States, Civ.No. 79-2975, Nov. 2, 1979 at 4-19, 29-42.
FN69. The Church's motion to intervene was denied without a statement of
reasons. United States v. Hubbard, Cr. No. 78-401 (D.D.C. Nov. 1, 1979),
Church App. Doc. 9. Denial of the Church's application for an order
temporarily restraining public access pending return of the documents was
accompanied by the following rationale:
(This) issue has been examined repeatedly by this court. It was the subject
of an extensive opinion, carefully worded, carefully thought out, by this
court in its order and memorandum of October 30, 1979.
The very essence of the order of this court of October 30th held that a
party does not have the right to hide material seized during a search on
the ground that a search may be declared invalid on appeal.
Since May 19, 1971, this court has kept statistics, and it has had the
unfortunate duty to sentence more people convicted of crimes than any other
judge of this court.
And this case, namely, the case of the United States versus Hubbard, is the
only case where documents in a suppression hearing, or otherwise, involving
criminal charges have not been spread upon the public record.
The public does have a right to know; and to hold otherwise would be to
make a folly of the first amendment with respect to the right of the public
to know, which this court has written on at length on several occasions.
. . . The court finds that the relief sought here is no more than that
relief which was denied by the court of appeals yesterday afternoon.
It is essentially a recasting of an application for another stay of this
court's October 30th order.
And the court agrees with the government that what it really seeks here,
namely, the petitioner, even though the other relief was sought by other
parties, is to have this court reverse itself in its October 30, 1979
order, which it carefully considered, as previously indicated, and did not
do.
The court further finds that there is no likelihood of success on the
merits, and that the public interest will be served by continuing to make
the documents available to interested parties after examination by the
court in accordance with the procedures that it has been following, and
will continue to follow.
Transcript of Proceedings, Church of Scientology of Cal. v. United
States, Civ.No. 79-2975, Nov. 2, 1979 at 54-56, Church App. Doc. 11.
C. Procedural Rights of the Individual Defendants
[6] The individual defendants, though on different grounds, also protested
public access to the seized documents and, with one minor exception, their
claims, like the Church's, fell within the trial court's ancillary jurisdiction
in criminal cases, as we interpret that concept.[FN70] This is because the
claims, though closely related to the criminal proceedings, were separable from
them; their determination did not require the district court and will not
require us to decide questions inextricably intertwined with the propriety of
the criminal conviction. This conclusion reflects our assessment of the
separability from the criminal proceeding of the claims raised on their face;
but it also inevitably reflects our judgment on the merits that the interests
asserted can and should be evaluated independently of the defendants' motion to
suppress the fruits of the search of Church premises.
FN70. See notes 55-56, supra, and accompanying text.
The one claim made that cannot be divorced from the criminal proceedings
themselves was that release of the documents violated the negotiated plea
disposition.[FN71] We do not consider this claim to fall within the trial
court's ancillary criminal jurisdiction. Accordingly, we do not address it, but
leave it for consideration on appeal from the criminal conviction if the
defendants wish to raise it at that time.
FN71. Cf. Cogen v. United States, 278 U.S. at 227-28, 49 S.Ct. at 120-
21 (denial of defendant's pre-trial motion for suppression and return of
seized property not "final").
A brief summary of the remaining interests asserted by the individual
defendants will demonstrate their ancillary nature. The defendants argued: that
publication would vitiate the benefits of possible reversal of their
convictions on appeal; would interfere with the proceedings commenced and
orders entered in the federal courts in California; would prejudice fair trial
rights in other criminal proceedings; and would violate the privacy rights of
individuals mentioned or discussed in the seized documents.[FN72] None of these
claims is inextricably bound up in an assessment of the validity of the
judgment of conviction. Even the "fair trial" rights assertedly jeopardized by
public access to the documents at issue presented an ancillary question. This
is because the defendants did not seek to protect from unfair publicity the
proceedings then in being but rather any subsequent proceedings in which they
or other indicted individuals might be defendants.
FN72. Supplemental Memorandum in Support of Defendants' Motion for
Reconsideration Re the Sealing of Documents, United States v. Hubbard,
Cr.No. 78-401 (D.D.C. filed Oct. 29, 1979) (submitted by defendants Heldt
and Snider); Motion for Reconsideration of Part of the Court's Order of
October 25, 1979, United States v. Hubbard, Cr.No. 78-401 (D.D.C. filed
Oct. 26, 1979) (submitted by all defendants). The last of these claims
(privacy of individuals) appears to have been made only by defendants Heldt
and Snider. Defendants' Supplemental Memorandum, supra at 2.
*314 **420 D. Appealability
[7] The "ancillary" nature of the interests asserted by both the Church and
the individual defendants and the practical finality of the contested orders
determines the question of their appealability.[FN73] The analogy to the
appealable "collateral order" doctrine of Cohen v. Beneficial Industrial Loan
Corp.[FN74] is strong and persuasive. Like the orders which are the subject of
that doctrine the orders entered here are "separable from, and collateral to"
[FN75] the rights of the parties to the criminal proceedings. Furthermore,
because public access to the documents at issue will to some extent irreparably
damage the interests asserted, an order which has the effect of permitting such
an invasion, as a practical matter, "finally determine(s)" the claim.[FN76] Our
consideration of the issues raised will neither halt nor disturb the orderly
progress of the criminal proceeding.[FN77] We are thus satisfied that these
issues are properly before us and turn to consideration of the merits of the
district court's decision to unseal the documents at issue.
FN73. See Go-Bart Importing Co. v. United States, 282 U.S. at 356,
51 S.Ct. at 157. The government challenges the appealability of the
order denying the motion labeled by the Church as one for a temporary
restraining order. Refusal of an order truly of that character is a ruling
neither final under 28 U.S.C. s 1291 (1976) nor appealable though
interlocutory under 28 U.S.C. s 1292(a)(1) (1976). Hoh v. Pepsico,
Inc., 491 F.2d 556, 560 (2d Cir. 1974). See also Adams v. Vance, 570
F.2d 950, 953 (D.C.Cir.1977) (grant of temporary restraining order not
ordinarily appealable). The denial is, however, appealable when it is
equatable to denial of a preliminary injunction. Levesque v. Me., 587
F.2d 78, 79-80 (1st Cir. 1978). That treatment is proper here because the
denial came only after the Church was heard on the merits. Sampson v.
Murray, 415 U.S. 61, 86-88, 94 S.Ct. 937, 951-52, 39 L.Ed.2d 166 (1974).
Moreover, the Supreme Court "has adopted essentially practical tests for
identifying those judgments which are, and those which are not, to be
considered 'final,' " Brown Shoe Co. v. United States, 370 U.S. 294,
306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962) (citing cases), and an order
may be deemed final and hence appealable when to do otherwise would
effectively destroy the opportunity for meaningful review. N. D. State
Bd. of Pharmacy v. Snyder's Drug Stores, Inc., 414 U.S. 156, 162, 94 S.Ct.
407, 412, 38 L.Ed.2d 379 (1973). See also Berrigan v. Sigler, 475 F.2d
918, 919 (D.C.Cir.1973), citing McSurley v. McClellan, 426 F.2d 664,
668 (D.C.Cir.1970). Here there is serious threat of irreparable harm to the
property and the privacy interests advanced.
FN74. 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). On
several occasions the collateral order doctrine has been applied by the
Court to determine the reviewability of issues raised in criminal cases.
See United States v. MacDonald, 435 U.S. 850, 853-61, 98 S.Ct. 1547,
1549-53, 56 L.Ed.2d 18 (1978) (holding unreviewable denial of defendant's
motion to dismiss indictment on speedy trial grounds); Abney v. United
States, 431 U.S. 651, 657-60, 97 S.Ct. 2034, 2039-40, 52 L.Ed.2d 651
(1977) (holding reviewable denial of defendant's motion to dismiss
indictment on double jeopardy grounds). See also Helstoski v. Meanor,
442 U.S. at 506-08, 99 S.Ct. at 2448-49 (appeal was available for denial of
defendant's motion to dismiss indictment on speech or debate clause
grounds); Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 4, 96 L.Ed. 3
(1951) (appeal was available for denial of defendant's motion to reduce
bail). Significantly, the doctrine was applied by this court in In re
Grand Jury Investigation of Ocean Transp., 604 F.2d 672, 673-74 (D.C.Cir.,
cert. denied, 444 U.S. 915, 100 S.Ct. 229, 62 L.Ed.2d 169 (1979) (per
curiam) to hold reviewable the district court's denial of a motion to
return allegedly privileged documents inadvertently disclosed to the
Department of Justice in the course of responding to a grand jury subpoena
duces tecum. See also United States v. Cianfrani, 573 F.2d 835, 845 (3d
Cir. 1978) (closure of pretrial hearing); United States v. Schiavo, 504
F.2d at 4-5 (gag order).
FN75. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. at 546, 69 S.Ct.
at 1225.
FN76. Id. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-69, 98
S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978); Eisen v. Carlisle &
Jacquelin, 417 U.S. 156, 171-72, 94 S.Ct. 2140, 2149-50, 40 L.Ed.2d 732
(1974).
FN77. Cobbledick v. United States, 309 U.S. at 327, 60 S.Ct. at 542.
See United States v. MacDonald, 435 U.S. at 853-54, 98 S.Ct. at 1549-50.
III. THE MERITS OF THE UNSEALING ORDER
We begin by recognizing this country's common law tradition of public access
to records of a judicial proceeding.[FN78] Access to *315 **421 records
serves the important functions of ensuring the integrity of judicial
proceedings in particular and of the law enforcement process more generally.
[FN79] But as the Supreme Court noted in Nixon v. Warner Communications,
Inc.,[FN80] the tradition of access is not without its time-honored exceptions:
FN78. Nixon v. Warner Communications, Inc., 435 U.S. at 597, 98 S.Ct.
at 1311 (hereinafter cited as Nixon ):
It is clear that the courts of this country recognize a general right to
inspect and copy public records and documents, including judicial records
and documents. In contrast to the English practice, see, e. g., Browne v.
Cumming, 10 B. & C. 70, 109 Eng.Rep. 377 (K.B.1829), American decisions
generally do not condition enforcement of this right on a proprietary
interest in the document or upon a need for it as evidence in a lawsuit.
(footnotes omitted); United States v. Mitchell, 551 F.2d at 1257-59
(hereinafter cited as Mitchell ), rev'd on other grounds sub nom. Nixon,
435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570. Cf. Richmond Newspapers,
Inc. v. Va., 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980).
FN79. See Nixon, 435 U.S. at 597-98, 98 S.Ct. at 1312:
The interest necessary to support the issuance of a writ compelling access
has been found, for example, in the citizen's desire to keep a watchful eye
on the workings of public agencies, and in a newspaper publisher's
intention to publish information concerning the operation of government.
(citations omitted); Mitchell, 551 F.2d at 1258:
This common law right is not some arcane relic of ancient English law. To
the contrary, the right is fundamental to a democratic state. As James
Madison warned, "A popular Government without popular information, or the
means of acquiring it, is but a Prologue to a Farce or a Tragedy: or
perhaps both. . . . A people who mean to be their own Governors, must arm
themselves with the power which knowledge gives." Like the First Amendment,
then, the right of inspection serves to produce "an informed and
enlightened public opinion." Like the public trial guarantee of the Sixth
Amendment, the right serves to "safeguard against any attempt to employ our
courts as instruments of persecution," to promote the search for truth, and
to assure "confidence in . . . judicial remedies."
(footnotes omitted). Cf. Richmond Newspapers, Inc. v. Va., 448 U.S. at
569-571, 100 S.Ct. at 2823-24 (multiple purposes of public access to
conduct of criminal trial); Id. at 592-598, 100 S.Ct. at 2836-2839
(Brennan, J., concurring) (same); In re Oliver, 333 U.S. 257, 270, 68
S.Ct. 499, 506, 92 L.Ed. 682 (1948) (public criminal trial is "restraint on
possible abuse of judicial power"); United States v. Cianfrani, 573 F.2d
at 851-54 (public right of access to criminal trials to see that justice is
done); United States v. Lopez, 328 F.Supp. 1077, 1087
(E.D.N.Y.1971) (same).
FN80. 435 U.S. at 598, 98 S.Ct. at 1312.
Every court has supervisory power over its own records and files, and access
has been denied where court files might have become a vehicle for improper
purposes. For example, the common-law right of inspection has bowed before the
power of a court to insure that its records are not "used to gratify private
spite or promote public scandal" through the publication of "the painful and
sometimes disgusting details of a divorce case." Similarly, courts have refused
to permit their files to serve as reservoirs of libelous statements for press
consumption, or as sources of business information that might harm a litigant's
competitive standing.
(citations omitted). The public has in the past been excluded, temporarily or
permanently, from court proceedings or the records of court proceedings to
protect private as well as public interests: to protect trade secrets,[FN81] or
the privacy and reputation of victims of crimes,[FN82] as well as to guard
*316 **422 against risks to national security interests,[FN83] and to
minimize the danger of an unfair trial by adverse publicity.[FN84] In addition,
both Congress and the courts have recognized that for certain purposes records
of arrests and even of convictions may be expunged by action of the court.
[FN85]
FN81. See Stamicarbon, N.V. v. Am. Cyanamid Co., 506 F.2d 532, 539-40
(2d Cir. 1974) (access to criminal contempt trial may be restricted, over
corporate defendant's objections, during portion of trial when another's
trade secrets are disclosed); Note, All Courts Shall Be Open: The Public's
Right to View Judicial Proceedings and Records, 52 Temp.L.Q. at 335 &
n.214, citing, inter alia, State ex rel. Ampco Metal, Inc. v. O'Neill,
273 Wis. 530, 539-40, 78 N.W.2d 921, 927 (1956) (inherent power to hold
proceedings in camera when trade secrets might be revealed); Annot. 62
ALR 2d 509, 510-29 (1958). See also Richmond Newspapers, Inc. v. Va.,
448 U.S. at 600 n.5, 100 S.Ct. at 2821 (Stewart, J. concurring).
FN82. E. g., United States ex rel. Latimore v. Sielaff, 561 F.2d 691,
693 (7th Cir. 1977), cert. denied, 434 U.S. 1076, 98 S.Ct. 1266, 55
L.Ed.2d 782 (1978) (excluding the merely curious from the testimony of a
rape victim); Harris v. Stephens, 361 F.2d 888, 891 (8th Cir. 1966),
cert. denied, 386 U.S. 964, 87 S.Ct. 1040, 18 L.Ed.2d 113 (1967) (
"frequent and accepted practice" to close courtroom to spectators during
testimony of rape victim); Sawyer v. Duffy, 60 F.Supp. 852, 853
(N.D.Cal.1945). See also Richmond Newspapers, Inc. v. Va., 448 U.S. at
600 n.5, 100 S.Ct. at 2821 (Stewart, J. concurring). But see Lexington
Herald Leader Co. v. Tackett, Nos. 80-SC-215-MR & 80-SC-287-MR, slip op. at
2, 4 (Ky. June 24, 1980) (although defendant did not object, closure of
courtroom during testimony of ten children alleged to have been victims of
sodomy was error).
FN83. See, e. g., United States v. Wash. Post, 403 U.S. 943, 91 S.Ct.
2271, 29 L.Ed.2d 853 (1971) (court permitting filing under seal of
materials claimed to affect national security); N.Y. Times v. United
States, 403 U.S. 942, 91 S.Ct. 2270, 29 L.Ed.2d 853 (1971) (same). See
also Richmond Newspapers, Inc. v. Va., 448 U.S. at 598 n.24, 100 S.Ct.
at 2839 (Brennan, J. concurring), citing United States v. Nixon, 418
U.S. at 714-16, 94 S.Ct. at 3110-11; United States v. Lemonakis, 485
F.2d 941, 962-63 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S.Ct.
1586, 39 L.Ed.2d 885 (1974).
FN84. See Branzburg v. Hayes, 408 U.S. 665, 684-85, 92 S.Ct. 2646,
2658, 33 L.Ed.2d 626 (1972); United States v. Gurney, 558 F.2d at 1209-
10. See also Gannett Co. v. DePasquale, 443 U.S. at 378-79, 99 S.Ct. at
2904-2905. In addition, affidavits submitted in support of search warrants
are sometimes sealed to protect the secrecy of an ongoing criminal
investigation. See In re Sealed Affidavits, 600 F.2d 1256 (9th Cir.
1979); Shea v. Gabriel, 520 F.2d 879, 880, 882 (1st Cir. 1975).
FN85. See, e. g., Doe v. Webster, 606 F.2d 1226, 1233
(D.C.Cir.1979) (Federal Youth Corrections Act permits expungement of
"conviction records"); Tarlton v. Saxbe, 507 F.2d 1116 (apparently
addressing only records maintained by law enforcement agencies).
Stephens v. Van Arsdale, 221 Kan. 676, 608 P.2d 972 (1980) (statutory
denial of access to criminal court records not unconstitutional where
convictions are ordered "expunged"). But see Johnson v. State, 336 So.2d
93 (Fla.1976) (expungement statute invalid insofar as it required judiciary
to destroy court records).
The Supreme Court has recently identified a first amendment right of access in
the public to the conduct of a criminal trial, Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), but whether this
right extends to the conduct of a pretrial suppression hearing,[FN86] and, if
so, what factors may be found weighty enough to permit complete or partial
closure of such proceedings,[FN87] is not clear. In any event, we deal here not
with the closure of courtroom proceedings but with the sealing of documents
whose contents were not specifically referred to or examined upon during the
course of those proceedings and whose only relevance to the proceedings derived
from the defendants' contention that many of them were not relevant to the
proceedings, i. e., that the seizure exceeded the scope of the warrant.
FN86. Compare Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898,
61 L.Ed.2d 608 (1979), distinguished in Chief Justice Burger's opinion in
Richmond Newspapers as having considered only the question of closure of
pretrial hearings, Richmond Newspapers, 448 U.S. at 561-564, 100 S.Ct.
at 2820-21. See also the concurring opinion of Mr. Justice Stewart, id.,
slip op. at 1.
FN87. Richmond Newspapers itself did not forbid all closure of criminal
trial proceedings. As the Chief Justice noted, "We have no occasion here to
define the circumstances in which all or parts of a criminal trial may be
closed to the public." Id. at 581 n.18, 100 S.Ct. at 2830 n.18. See
also id. at 584, 100 S.Ct. at 2831. (Stevens, J. concurring)
(emphasizing "total absence of any record justification for th(is) closure
order); id. at 598 n.24, 100 S.Ct. at 2839 n.24 (Brennan, J.
concurring) (right to gather information must "be assayed by considering
the information sought and the opposing interests invaded" and noting
that "national security concerns . . . may sometimes warrant closures
"); id., at 600 n.5, 100 S.Ct. at 2840 (Stewart, J. concurring)
(suggesting justifiability of partial civil trial closure to preserve trade
secrets and of partial criminal trial closure if sixth amendment rights
were not impaired during portions of rape testimony).
The Court's decision in Richmond Newspapers has not cast doubt on its
earlier conclusion that "the right to inspect and copy judicial records is not
absolute;" [FN88] nor do we read it to have undermined its conclusion, based on
then available law, that "the decision as to access (to judicial records) is
one best left to the sound discretion *317 **423 of the trial court, a
discretion to be exercised in light of the relevant facts and circumstances of
the particular case." [FN89] In the analysis that follows we explain why under
the facts and circumstances of this case we think the unsealing order was
flawed and why we must remand for supplemental proceedings.
FN88. Nixon, 435 U.S. at 598, 98 S.Ct. at 1312; See Richmond
Newspapers, 448 U.S. at 581 n.18, 100 S.Ct. at 2836.
FN89. Nixon, 435 U.S. at 599, 98 S.Ct. at 1312. This discretion should,
of course, clearly be informed by this country's strong tradition of access
to judicial proceedings a tradition which is now grounded, at least with
respect to the actual conduct of criminal trials, in the first amendment.
A. The "Generalized Interests" for and Against Public Access in This Case
Some aspects of the public's interest in access and of the appellants'
interests in denying public access can be weighed without examining the
contents of the documents at issue. In the remainder of this opinion these
aspects of the competing interests involved in this case are referred to as
the "generalized interests" at stake.
We acknowledge an important presumption in favor of public access to all
facets of criminal court proceedings but we conclude that on the record now
before us an assessment of the generalized interests here at stake does not
support a conclusion that the documents at issue should not be retained under
seal.
We cannot determine from the trial judge's orders what factors entered into
his initial decision to unseal or even if he found a weighing of these
generalized interests appropriate. For this reason alone we must remand.
However, taken as having weighed only the generalized interests, we think the
unsealing decision was an abuse of discretion. Compelling this conclusion in
this case is an analysis of several relevant factors discussed under separate
subheadings below.
1. The Need for Public Access to the Documents at Issue
Under this heading we bring together several considerations which in our
judgment bear upon the precise weight to be assigned in this case to the always
strong presumption in favor of public access to judicial proceedings. Some of
these considerations have already been mentioned and others, because they also
bear on the reasons why public access might be denied, will be emphasized again
later.
We first note that this case does not involve access to the courtroom conduct
of a criminal trial, recently found by the Supreme Court to be constitutionally
protected.[FN90] Nor does it involve access to the courtroom conduct of a pre-
trial suppression motion, access the Court a year earlier ruled the sixth
amendment alone did not protect.[FN91] It does not involve access to documents
which have been introduced as evidence of guilt or innocence in a trial,[FN92]
nor even documents whose contents have been discussed or insofar as we can
determine relied upon by the trial judge in his decision on the defendants'
motion to suppress. As we emphasize below,[FN93] it concerns only access to
documents introduced by the defendants solely to show the overbreadth of a
search whose lawfulness, although decided by the trial judge in the
government's favor, was certain to be appealed at the time the unsealing order
was entered.[FN94]
FN90. Richmond Newspapers, Inc. v. Va., 448 U.S. 555, 100 S.Ct. 2814,
65 L.Ed.2d 973.
FN91. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61
L.Ed.2d 608 (1979).
FN92. Compare Nixon, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 rev'g
sub nom. Mitchell, 551 F.2d 1252 (tape recordings).
FN93. See text at notes 108-111, infra.
FN94. We note that in the original Rule 41(e) proceedings brought by
the Church in California the California federal courts took the precaution
of prohibiting all public disclosure while the issue was pending within the
ninth circuit. See note 6, supra.
The public in this case had access, inter alia, to the courtroom proceedings
on the motion to suppress, to the memoranda filed by the parties in connection
with that motion, to the trial judge's memorandum decision **424 *318 on
the suppression motion, to the trial judge's memorandum decision on the
negotiated disposition, to the stipulated record which was the basis for the
defendants' convictions and to the actual "trial" of the criminal charges of
which the defendants were convicted. None of the documents at issue here was
either used in the examination of witnesses during the protracted public
hearing on the suppression motion or specifically referred to in the trial
judge's public decision on the motion to suppress or included as part of the
publicly available stipulated record on which the defendants' criminal
convictions were had.[FN95]
FN95. See note 96, infra.
Under all these circumstances we conclude that the purposes of public access
are only modestly served by the trial judge's unsealing decision.
2. Public Use of the Documents
Although the materials at issue are part of the "record" of the proceedings,
their contents were not publicly revealed until the court entered its unsealing
order.[FN96] Previous access is a factor which may weigh in favor of subsequent
access. Determining whether, when and under what conditions the public has
already had access to court records in a given case cannot of course guide
decision concerning whether, when and under what conditions the public should
have access as an original matter. However, previous access has been considered
relevant to a determination whether more liberal access should be granted to
materials formerly properly accessible on a limited basis through legitimate
public channels [FN97] and to a determination whether further dissemination of
already accessible materials can be restrained.[FN98]
FN96. We have described in text and notes above the tortuous proceedings
by which the seized documents were made a part of the record in the
criminal proceedings and came to reside in the custody of the district
court here. Although the defendants urged the court to examine the
documents, none of those at issue was read into the record in haec verba
nor was any used in the examination of witnesses by either the government
or the defense. The defense prepared, introduced and examined a witness
concerning a study which purported to classify all documents seized as
within or without the scope of the warrant. A computerized catalogue of
seized materials, which was the basis for the study, was also made a part
of the record but neither the study nor the catalogue revealed or even
described the contents of the documents. The documents made a part of the
stipulated record for trial and the documents used in the examination of
witnesses at the suppression hearing are not among those at issue on this
appeal. See note 21, supra. In addition, the content of those at issue was
not described either generally or specifically in the trial judge's
decision on the motion to suppress, nor so far as we can tell were they
described in any papers filed in the district court proceedings. The seized
documents were under the seal of this district court from the moment they
were made a part of the record until the court acted upon the unsealing
orders here at issue and no member of the public, by attending courtroom
proceedings or by reading the decisions of the district judge or the
motions or other papers filed by the parties, could have determined their
contents. As a practical matter these documents had not already entered the
public domain through the criminal court proceedings. Furthermore, nothing
before us now suggests that their confidentiality had been impaired by use
in the federal courts in California. See note 6, supra.
FN97. Those portions of the "White House tapes" to which the media sought
access in Mitchell, 551 F.2d 1252, rev'd sub nom. Nixon, 435 U.S.
589, 98 S.Ct. 1306, 55 L.Ed.2d 570 had already been publicly played to the
limited number of spectators who were able to find space in Judge Sirica's
"cramped courtroom." See Nixon, 435 U.S. at 593 n.3, 594, 98 S.Ct. at
1309 n.3, 1310; Mitchell, 551 F.2d at 1258.
FN98. See Okla. Publishing Co. v. Dist. Court, 430 U.S. 308, 310-11, 97
S.Ct. 1045, 1046-47, 51 L.Ed.2d 355 (1977) (press may not be restrained
from publishing photograph and information obtained in and around courtroom
proceedings when they were not in fact excluded from courtroom); Cox
Broadcasting Co. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328
(1975) (press may not be made liable for publishing name of rape victim
whose name was already publicly available).
The record in this case reveals no such access to the documents until the
district court decided that there was "a right in the public to know." [FN99]
There is thus no previous **425 *319 access to weigh in favor of the
access granted through the district court's unsealing order.
FN99. Acknowledging the relevance of previous access raises the question
whether on remand the fact of access while this appeal was pending should
enter into a determination whether public access should now be permitted.
We think it should not. To employ the language used in the text, we do not
think the materials were "formerly properly accessible." To permit this
mode of access to factor into a subsequent evaluation of the interests at
stake would only compound the errors we perceive in the court's original
orders.
Because we conceive of the interests asserted as a continuum which can be
further invaded with each passing day by a single and unchanging
encroachment, we do not think the case has become moot. Cf. Walter v.
United States, 447 U.S. 649, 659 n.13, 100 S.Ct. 2395, 2403, 65 L.Ed.2d
410 (1980) (continuing fourth amendment privacy interest in package
mistakenly delivered to and opened by third party before delivery to FBI)
("A partial invasion of privacy cannot automatically justify a total
invasion."); Nixon, 435 U.S. at 602-03, 98 S.Ct. at 1314-15 (but for
Presidential Recordings Act Court was prepared to balance privacy interests
in recordings already publicly played against public interest in access).
See Cell Assoc., Inc. v. Nat'l Inst. of Health, 579 F.2d 1155, 1157 (9th
Cir. 1978) (Privacy Act claim not mooted by public disclosure of materials
and widespread comment by press). We do not now address the rights of the
press or the public to make use of copies of the documents obtained through
the court while access was permitted.
We treat the question whether public access should be granted to particular
documents which have already entered the public domain through other
channels under our discussion of the "particularized interests" at stake,
infra, note 112 and accompanying text.
3. Fact of Objection and Identity of Those Objecting to Disclosure
Strong objections were raised to the unsealing order both by the individual
defendants and, to the extent it was permitted, by the Church. This is an
obvious but important consideration. The kinds of property and privacy
interests asserted by the Church to require retention of the documents under
seal can be waived by failure to assert them in timely fashion,[FN100] and the
strength with which a party asserts its interests is a significant indication
of the importance of those rights to that party.
FN100. The government appears to suggest that the individual defendants'
reluctant acquiescence to the trial court's warnings that he reserved the
power and discretion to unseal the documents whenever he wished constitutes
a waiver of objection to disclosure. Brief for Appellee in No. 79-2312 at
10; Brief for Appellee in Nos. 79-2313 & 79-2324 at 10-11. We disagree.
Although we think the defendants' position could have been more forcefully
stated and more assiduously pursued, we do not think their acquiescence
constitutes a waiver of their underlying substantive objection. See Tr.
Jul. 18, 1979 quoted supra, note 9. Even if we were to hold that the
Church had notice of the trial judge's position through the defendants or
through common counsel, the uncertainty of its procedural right to assert
an interest in retaining the documents under seal, as well as the
uncertainty of eventual unsealing would foreclose a finding of waiver by
the Church based on notice of the trial judge's repeated warnings.
An important element in this case is the fact that the party from whom the
documents were seized was not made a defendant in the proceedings and now
objects to public access to the fruits of the seizure. We think that where a
third party's property and privacy rights are at issue the need for minimizing
intrusion is especially great and the public interest in access to materials
which have never been judicially determined to be relevant to the crimes
charged is especially small.[FN101]
FN101. See generally Andresen v. Maryland, 427 U.S. at 482 n.11, 96
S.Ct. at 2749 quoted in part, supra, text following note 37. But see
Zurcher v. Stanford Daily, 436 U.S. 547, 562 n.9, 98 S.Ct. 1970, 1980
n.9, 56 L.Ed.2d 525 (1978) (rejecting rule requiring government to proceed
by subpoena for materials held by third party not suspected of crime): "We
reject totally the reasoning of the District Court that additional
protections are required to assure that the Fourth Amendment rights of
third parties are not violated because of the unavailability of the
exclusionary rule as a deterrent to improper searches of premises in the
control of nonsuspects." We, of course, have no occasion to pass upon the
lawfulness of the underlying search in this case. The minimization of
intrusion which we address is that which may be effected by careful
exercise of the trial court's supervisory authority over public access to
the fruits of a search and seizure held in that court's custody.
We are well aware that all defendants here were officials or employees of the
Church and that the defendants' interests and the Church's interests are
integrally related; nonetheless it is also true that their interests are not
identical. The defendants **426 *320 might not be permitted [FN102] and
are certainly not required to raise the Church's interests in preventing public
access to the documents at issue. Even in the context of this case, then, we
think the fact that objection to access is made by a third party weighs in
favor of non-disclosure.
FN102. E. g., County of Kern v. Superior Court, 82 Cal.App.3d 396, 401,
147 Cal.Rptr. 248, 251 (1978) (in resisting discovery of records hospital
may not assert California constitutional privacy right of doctors);
Hendrickson v. Cal. Newspapers, Inc., 48 Cal.App.3d 59, 62, 121
Cal.Rptr. 429, 431 (1975) (deceased's relatives may not assert California
constitutional privacy right in publication of deceased's criminal
conviction). Cf. United States v. Salvucci, 448 U.S. 83, 86, 100 S.Ct.
2547, 2550, 65 L.Ed.2d 619 (1980) (in seeking suppression of fruits of
search, defendant may not assert another's expectations of privacy);
United States v. Payner, 447 U.S. 727, 729, 100 S.Ct. 2439, 2443, 65
L.Ed.2d 468 (1980) (same); Rakas v. Ill., 439 U.S. 128, 138-40, 99 S.Ct.
421, 427-28, 58 L.Ed.2d 387 (1978) (same). But see Griswold v. Conn.,
381 U.S. at 481, 85 S.Ct. at 1679 (physician and directors of planned
parenthood league may assert constitutional rights of married persons with
whom they had professional relationship); Comm'r v. Mun. Court, 100
Cal.App.3d 69, 161 Cal.Rptr. 19 (1979) (in resisting discovery of names of
arrested persons Highway Patrol may assert California constitutional
privacy right of arrestees).
4. Strength of the Generalized Property and Privacy Interests Asserted
That the documents were seized from non-public areas of Church premises is
undisputed. Accordingly, the Church's "standing" to assert the kinds of
generalized interests which derived from the fact of seizure from its premises-
interests which we have discussed above in connection with the Church's
procedural rights [FN103]-is unquestionably strong.[FN104] By this we mean its
interest on this record is direct and substantial, substantial enough, given
the other factors to be considered in weighing the generalized interests in
public access against the generalized interest in nondisclosure here asserted,
to require retention of the documents under seal.
FN103. See text at notes 23-53, supra.
FN104. The documents are of course presumed to be the property of the
Church, from whom they were seized, and if the government contends
otherwise, it carries the burden of proof. See United States v. Wright,
610 F.2d at 939 ("seizure of property from someone is prima facie evidence
of that person's entitlement") (emphasis in original); United States v.
Palmer, 565 F.2d at 1065 ("We conclude that in absence of any cognizable
claim of ownership or right to possession adverse to that of appellant, the
district court should have granted appellant's motion and returned to him
the money taken from him by government seizure.").
The privacy interests asserted, though perhaps not presumptively
protectible, are equally strong on this record. In fourth amendment terms,
the reasonability of the Church's expectation of privacy in the areas
searched is unquestionable on this record. See G.M. Leasing Corp. v.
United States, 429 U.S. at 354, 97 S.Ct. at 629; Coolidge v. N. H., 403
U.S. 443, 474-75, 91 S.Ct. 2022, 2042-43, 29 L.Ed.2d 564 (1971). See also
Payton v. N. Y., 445 U.S. 573, 584-593, 100 S.Ct. 1371, 1379-83, 63
L.Ed.2d 639 (1980). But cf. Pearson v. Dodd, 410 F.2d at 704-06 (no
actionable claim for invasion of privacy stated by United States Senator
against newspaper columnists who publicized information derived from copies
of documents taken from Senator's office without Senator's knowledge or
authorization by Senator's staff members and former staff members).
The "standing" of the individual defendants to assert these generalized
interests in the documents at issue is less clear. Because the Church's
asserted interests are strong and the defendants assert no conflicting
interest, we need not determine the precise scope of the individuals'
generalized interests in the retention of the documents under seal. We note,
however, that the defendants' standing to assert certain of these generalized
property and privacy interests may be broader than the scope of their
"standing" to object to an unlawful search and seizure.[FN105]
FN105. See note 102, supra. See also note 50, supra.
5. Possibility of Prejudice
Two defendants whose extradition has only recently been accomplished remain to
be tried. In addition, the government has the right to try the nine convicted
defendants on any of the remaining counts should their single-count convictions
be overturned on appeal. Thus, the possibility of *321 **427 prejudice to
the defendants by sensational disclosure is a factor which may weigh in favor
of denying immediate public access.[FN106] The likelihood of prejudice will in
turn depend on a number of factors, including, most importantly, the nature of
the materials disclosed. Until such an examination is undertaken, the weight of
this factor cannot be determined. The trial judge's conclusion that the
possibility of prejudice is remote [FN107]-ostensibly reached without complete
familiarity with the documents-cannot, therefore, favor public access.
FN106. See text at note 84 and note 84, supra.
FN107. The defendants' argument that disclosure would jeopardize fair
trial rights was rejected by the district court in the following analysis:
The government has indicated that other criminal prosecutions based on the
documents seized in California may be forthcoming. Moreover, there are two
defendants who will have to stand trial before this Court if they are
extradited from Great Britain. The defendants contend that release of the
documents will taint their ability to receive fair trials. With respect to
prosecutions in other jurisdictions, the defendants concern is merely
hypothetical. The Court has no hard information that other prosecutions
will be forthcoming, but even if this happens that can be dealt with at a
later day by another court or this one. If court records were kept sealed
on such "potential" grounds, none would ever be released. With respect to
the other two defendants awaiting extradition, most of the alleged "taint"
against them may result from the records attached to the stipulated record
and these records are not at issue on the instant motion. Furthermore, with
respect to all other criminal proceedings, if any, a careful voir dire can
be used to eliminate any prejudice. United States v. Haldeman, 559 F.2d
31 (D.C.Cir.1976) (per curiam) (en banc) cert. denied, 431 U.S. 933
(, 97 S.Ct. 2641, 53 L.Ed.2d 250) (1977).
United States v. Hubbard, Cr. No. 78-401, slip op. at 4-5 (D.D.C. Oct.
30, 1979), Hubbard App. at 226-27.
6. The Purposes for Which the Documents Were Introduced
The single most important element in our conclusion that the proper balance
has not been struck in this case is the fact that the documents at issue were
introduced by the defendants for the sole purpose of demonstrating the
unlawfulness of the search and seizure. Whatever the purposes served by the
exclusionary rule, the fundamental thrust of the fourth amendment is at bottom
the protection of privacy and property interests.[FN108] Putting aside for the
moment the prospect of untoward invasions of third-party interests, it would be
ironic indeed if one who contests the lawfulness of a search and seizure were
always required to acquiesce in a substantial invasion of those interests
simply to vindicate them.[FN109]
FN108. See, e. g., Tehan v. United States ex rel. Shott, 382 U.S. 406,
416, 86 S.Ct. 459, 465, 15 L.Ed.2d 453 (1966) (fourth and fifth amendments
are concerned with "constitutional values . . . reflecting the concern of
our society for the right of each individual to be let alone"); Mapp v.
Ohio, 367 U.S. 643, 656-57, 81 S.Ct. 1684, 1692, 6 L.Ed.2d 1081 (1961). See
also Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72
L.Ed. 944 (1928) (Brandeis, J., dissenting).
FN109. Cf. Simmons v. United States, 390 U.S. 377, 389-94, 88 S.Ct.
967, 973-76, 19 L.Ed.2d 1247 (1968).
It must be remembered that the documents here were not determined by the trial
judge to be relevant to the crimes charged; they were not used in the
subsequent "trial"; nor were they described or even expressly relied upon by
the trial judge in his decision on the suppression motion. Their only use by
the parties and the only purpose for which they were admitted in the criminal
proceedings was to assist the court in its determination of whether the search
and seizure were unlawfully overbroad. If such a connection with the
proceedings were enough by itself to justify public access, there would be very
little left of fourth amendment and common law rights to privacy. For, by the
act of attempting to show the excesses of the search by the extent of the
documents seized-documents which may not be relevant to criminal charges or
necessary to trial-defendants in criminal proceedings and nondefendant owners
in Rule 41(e) proceedings will invite public dissemination of the contents
of the documents and thereby impair the very privacy rights they seek to
vindicate, regardless of the use ultimately made of the documents by the court.
*322 **428 The risk is especially grave in document searches not only
because the protected position occupied by personal papers has traditionally
been closely guarded [FN110] but because determination of a claim of
overbreadth may require the court to examine the documents' contents. However,
in this case it is not clear that such an examination was undertaken in the
course of ruling on the suppression motion; the unsealing decision is thus
especially difficult to reconcile with the purposes underlying the documents'
inclusion in the record of the suppression proceedings.
FN110. See generally McKenna, The Constitutional Protection of Private
Papers: The Role of a Hierarchical Fourth Amendment, 43 Ind.L.J. 55 (1977);
Note, Papers, Privacy and the Fourth and Fifth Amendments: A Constitutional
Analysis, 69 Nw.U.L.Rev. 626 (1974).
Finally, one factor not crucial to our decision is nevertheless worth
emphasizing: that is, that the lawfulness of the search and seizure was certain
to be appealed at the time the trial judge entered his unsealing order.[FN111]
That appeal has been filed and is still pending in this court. Until the
appellate route has been exhausted, the lawfulness of the search and seizure
has not been finally determined. The possibility of reversal on appeal
contributes to the irony inherent in the decision to unseal the documents at
issue.
FN111. See note 15, supra.
[8] Given all the factors discussed above we conclude that on the present
state of the record the seal on the documents at issue here should not have
been lifted, and should continue unless on remand some substantial factors are
identified which weigh in favor of public access to particular documents.
B. Particularized Factors That May Have Weighed Against Nondisclosure
To facilitate the proceedings on remand, we set forth below several reasons
based on the documents' contents which might have been thought by the trial
judge to justify his unsealing order. On this record, of course, we cannot
determine whether these reasons were relied upon; our discussion of them
represents merely the observations of an appellate court, and no inference
should be drawn from our discussion that would conclude our review of the
reasons actually given by the trial judge when the matter is again before us.
One possible reason for unsealing is that the documents were already made
public through other means; the government has made this claim, at least in
this court, as to some of the documents.[FN112] A second is that the documents
were stolen or contraband, hence forfeitable. The government asserted below
that some of these documents meet that standard.[FN113]
FN112. The claim was specifically made as to two documents in a
supplemental post-argument memorandum filed by the government in this
court. "(W)hile the Church of Scientology has sought to have this Court
order that all documents in the Clerk's custody be re-sealed, on the ground
that public accessibility to these documents constitutes an invasion of
Church members' privacy, the Church itself has selectively chosen to
publish certain of those documents for the apparent purpose of
demonstrating to that same public that the Church and its members have been
victims of governmental harrassment." Supplemental Memorandum for Appellee
in Nos. 79-2313 & 79-2324 at 2.
FN113. In his oral ruling denying the Church's application for temporary
relief, Judge Richey stated:
(T)here has been no determination as to which of the documents in the
court's custody at this time are subject to forfeiture, or may later be
subject to forfeiture.
There are allegations that many of the documents were stolen from
government agencies and private organizations.
No documents will be returned, or can be returned, until such a
determination can be made.
Transcript of proceedings, Church of Scientology of Cal. v. United
States, Civ.No. 79-2975, Nov. 2, 1979 at 52, Church App. Doc. 11.
However, in considering the presumptive owner's right to return of seized
property this court cautioned in United States v. Wilson, 540 F.2d at
1104:
It goes without saying, that if the Government seeks to forfeit the
property a proper proceeding should be instigated to accomplish that
purpose. A claim by the owner for the return of his property cannot be
successfully resisted by asserting that the property is subject to
forfeiture. If the property is subject to forfeiture, appropriate
proceedings should be started expeditiously.
(citation and footnote omitted) (emphasis in original).
*323 **429 A third possible reason, and the most troublesome as a matter
of policy, is that the documents were evidence of crimes-whether additional
evidence of the crimes charged, or evidence of other crimes committed by the
defendants then before the court, or even evidence of crimes committed by
persons not charged in the instant proceedings or then before the court. Of
course, copies of the documents can be made available by the court to
appropriate law enforcement authorities; no one disputes that here. But public
access is more bothersome. Wholesale public access even of materials apparently
relevant to criminal activity does not allow for the safeguards of the criminal
process as to what is admissible evidence and what is not.[FN114] As to
potential defendants not involved in the proceeding, or even as to evidence of
other crimes of the same defendants, premature publication can taint future
prosecutions to the detriment of both the government and the defense. If the
additional evidence be merely cumulative evidence of the same criminal acts on
which the disposition agreement was based, public access would seem to serve
little purpose, except perhaps if and when the materials are relied upon in
sentencing.[FN115]
FN114. In Nixon, 438 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570, the
tapes sought had already been carefully screened in camera for their
relevance to the crimes charged, see Nixon v. United States, 418 U.S.
683, 713-716, 94 S.Ct. 3090, 3110-11, 41 L.Ed.2d 1039 (1974); United
States v. Mitchell, 386 F.Supp. at 642, and had been introduced in evidence
during trial of the charges. See note 97, supra.
FN115. See generally Fed.R.Crim.P. 32(c)(3). But see McLauchlan,
Privacy and the Presentence Report, 54 Ind.L.J. 347 (1979).
It is, however, possible to conjure up exceptional cases. For example, there
may be cases where massive scale crimes would go unpunished if documents were
not released to permit the public to take the steps necessary to ensure
prosecution. Release for this reason might be considered justifiable under
circumstances where the integrity of the law enforcement process would be
substantially served by permitting public access; for example, where a
governmental failure to prosecute in the light of overwhelming probable cause
substantially impugns the integrity of the prosecutorial function. Another
circumstance where access might be thought warranted is where the remedies of
grievously injured and unknowing victims would be jeopardized if the documents
never entered the public domain. Whether the trial judge justified unsealing on
these or other bases is unclear. We think it incumbent on him to identify the
reasons for his action with respect to the particular documents at issue.
C. Particularized Privacy Interests Which May Weigh in Favor of Denying Public
Access
To be weighed against the particularized reasons which may justify public
access are the particularized privacy or other interests that the Church or the
individual defendants may assert.[FN116] Some of these interests have already
been weighed by the trial judge.
FN116. As suggested above, the potential for prejudice inherent in the
documents' release must be assessed with specific reference to the
documents' contents. The possibility of prejudice is thus another
"particularized" interest which may be asserted to deny public access.
In the district court neither the Church nor the individual defendants
attempted to itemize their interests in particular documents. Given the
time constraints under which their arguments were fashioned and presented
and the extremely large number of documents at issue, this is
understandable.
In his order of October 30, denying reconsideration of the earlier unsealing
order, Judge Richey explained:
The defendants cite instances in which documents discuss the sex lives of
members of the Church, tax returns of individuals, and attorney-client material
of law firms. In order to make certain that such material, which would violate
rights of innocent third-parties is not released, *324 **430 the Court
will examine the documents at issue and will keep under seal those documents or
portions of documents which would result in an unwarranted invasion of privacy.
Of course such an exercise will be time consuming; however, fairness requires
such a procedure.[FN117]
FN117. United States v. Hubbard, Cr. No. 78-401, slip op. at 6 (Oct.
30, 1979), Hubbard App. at 228.
The kinds of interests cited by the defendants below do not, we think, exhaust
the types of particularized privacy interests that might be asserted in the
supplemental proceedings, nor do we think that the privacy interests to be
protected are limited to those of "innocent third-parties." Valid privacy
interests might be asserted either by the Church or by the individual
defendants in documents as to which they (or Church members if the Church
proceeds representatively) could assert a privilege against evidentiary use
[FN118] or in documents which reveal the intimate details of individual lives,
sexual or otherwise,[FN119] whether or not they concern "innocent third
parties." Other valid privacy interests might also be asserted; we do not
decide now which are valid and which are not.
FN118. Evidentiary privileges serve to protect at least some aspects of
the amorphous concept of privacy. See McCormick's Handbook of the Law of
Evidence 157 (2d ed. E. Cleary ed. 1972):
(P)rivileges have survived largely unaffected by . . . (the criticisms of)
eminent scholars and jurists who saw them as suppressing the truth, for it
is evident that for many people, judges, lawyers and laymen, the protection
of confidential communications from enforced disclosure has been thought to
represent rights of privacy and security too important to relinquish to the
convenience of litigants.
FN119. Concerning privacy tort actions against the press, Professor
Emerson has suggested that
protection . . . be extended only to matters related to the intimate
details of a person's life: those activities, ideas or emotions which one
does not share with others or shares only with those who are closest. This
would include sexual relations, the performance of bodily functions, family
relations, and the like.
Emerson, The Right of Privacy and Freedom of the Press, 14 Harv.C.R.-
C.L.L.Rev. 329, 343 (1979). However, as noted earlier, he has also
suggested a broader scope of protectible privacy against governmental
activity. See note 44, supra.
IV. THE PROCEDURES TO BE FOLLOWED IN THE SUPPLEMENTAL PROCEEDINGS
We contemplate that on remand the district court will review its decision to
unseal the documents. In doing so, the court should bear in mind: the Supreme
Court's injunction that judicial officers attempt to minimize the intrusiveness
of document searches; [FN120] and this court's determination, on the basis of
the record now before us, that the seal on the documents at issue should be
retained, absent substantial factors weighing in favor of public access.
FN120. Andresen v. Maryland, 427 U.S. at 482 n.11, 96 S.Ct. at 2749
n.11.
The record does not permit us to determine how the trial judge's analysis of
the generalized interests at stake differed from our own, nor whether he may
have justified disclosure on the basis of the "particularized" factors we
suggest or on some other basis. If, upon reconsideration in light of our
analysis, the trial judge determines to abide by his unsealing order in whole
or in part, the reasons relied upon should be identified in a supplemental
rationale with specific reference to the particular documents or group of
documents to which each reason is applicable.
This supplemental rationale should be supplied to the parties, including the
Church. The defendants on their own behalf and the Church on behalf of itself
and its constituent members may then, by motion for reconsideration and
accompanying affidavit, contest the reasons given in the supplemental rationale
and articulate any particularized privacy interest they wish to assert with
respect to a document that is to be released. The district court may then grant
or deny the motions in whole or in part. It may be that where both the public
interest in access and the private interest in non-disclosure are strong,
partial or redacted **431 *325 disclosure would satisfy both interests.
Such portions of the supplemental rationale, responses thereto and any order on
reconsideration that are revealing of the contents of the documents at issue
should be filed under seal. The record of the supplemental proceedings should
then be transmitted to this court where our consideration of the orders will
continue.[FN121]
FN121. It is in the nature of our judicial process that we decide only the
few questions presented by the facts of the case before us. This case
presents narrow questions which we have undertaken to answer above.
Nevertheless, we are acutely aware of the proximity, gravity and difficulty
of several questions not answered. In particular, we wish to emphasize that
we do not decide: (1) The rights of defendants or any third party to
exclude the public from the courtroom conduct of a criminal case or from
the records of the trial of criminal charges; (2) The public right of
access to seized materials used for any purpose other than to demonstrate
on a motion to suppress, the unlawfulness of the search; and (3) The
procedural and substantive rights of third parties who seek to assert a
privacy interest in materials not compulsorily taken from their persons or
premises.
V. CONCLUSION
We vacate the orders denying intervention and temporary injunctive relief,
appealed in Nos. 79-2313 and 79-2324; [FN122] stay the unsealing orders
appealed in No. 79-2312 and remand the record for the proceedings which we
direct. This division of the court retains jurisdiction over the matter and
orders all documents here at issue sealed pending our decision following
remand.
FN122. For the reasons given, supra, note 63, we affirm that portion of
the order appealed in No. 79-2324 which may be read to deny on the merits
immediate return of the documents seized.
So ordered.
MacKINNON, Circuit Judge, dissenting:
To my mind the majority opinion confuses privacy with secrecy. The majority
resolve this appeal by remanding the record for clarification by the district
court of the grounds on which it removed the seal on documents introduced into
evidence by the defendants at the suppression hearing. The majority accompanies
its disposition with a stay forbidding further disclosure of the evidentiary
documents until this panel, which retains jurisdiction over the appeal, issues
a further order regarding them.
My dissent from this disposition is based on my conclusion that the disclosure
was not only warranted, but required. I also find the record sufficiently
detailed to support the action taken by the district court, making this remand
unnecessary. Finally, I disagree with the court that the Church of Scientology
of California [FN1] is entitled to intervene in the criminal proceedings.
FN1. Hereinafter sometimes referred to as the "Church" or "Church of
Scientology."
I
The facts are fully set forth in the court's opinion and, except for several
which bear emphasis, will not be repeated here.
The source of the documents which are the subject of this appeal was the
seizure from the Church of Scientology of California, at two Los Angeles
locations. Copies of the 50,000 pages seized were transmitted to Washington, D.
C. for consideration by the trial court to determine the validity of the search
against the contention that it was a constitutionally impermissible general
search. There is no disagreement on the court that the legal effect of
requesting the trial court to examine the entirety of the seized materials was
that they became part of the "record" of the case. Supra at 299 (quotation
marks in original). I agree with the factual conclusion of the majority that
this reflects the contemporaneous understanding of the parties and the district
court.[FN2]
FN2. The Church of Scientology attempted to impose an "agreement" on the
trial court to retain the documents under seal. If the action taken was
within the parameters of the trial court's inherent power over the
proceedings before it, as I conclude, then the wishes of the defendants,
even if acceded to by the government, did not in any way restrain the
court. Parties do not by their agreements limit the powers of the court.
Nor do parties "contract" with the court, as the record reflects the
criminal defendants attempted to do. Parties legitimately, of course, make
requests of the court through the medium of motions, which are applications
for an order. That should not be confused with a power to dictate the
actions of the court.
*326 **432 In the criminal proceedings involving individuals who are
employees or officials of the Church of Scientology, the trial court adopted a
disposition of the charges that conformed to the negotiated plea agreement.
Just before rendering guilty verdicts after a bench trial, the judge ordered
that all seized documents which the defendants had caused to be admitted into
evidence on the earlier suppression motion, and which had not been earlier
returned as unnecessary to the prosecution or used in the examination of
witnesses at the suppression hearing, be made available for public inspection.
Attempts to stay the disclosure were ineffective in the district court, before
a motions division of this court, and before this Court en banc. Thereafter,
the Chief Justice of the United States, acting as Circuit Justice, also denied
an application for a stay. The disclosure of the documents was the question
involved in such proceedings and the same issue is raised here a second time.
II
This proceeding reaches the court in a posture where the public disclosure of
all the documents has continued until the present date. The majority now orders
that the documents be sealed to prevent public access. Further disclosure is
prohibited pending review by this court after remand. I dissent from that
disposition because there is an ample factual and legal basis for the order of
the district court making such evidentiary documents available as court records
in the case.
A
At the outset it is essential to consider the posture of the case when the
judge removed the seal from the documents. The original claim by the defendants
was that the search was illegal. This claim was based upon the allegedly
overbroad language of the search warrant. In this respect the search warrant in
California was the same as the one in the District of Columbia which had been
held to be valid. In Re Search Warrant Dated July 4, 1977, 572 F.2d 321
(D.C.Cir.1977), cert. denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519
(1978). In Church of Scientology v. United States, 591 F.2d 533 (9th Cir.
1979), cert. denied 444 U.S. 1043, 100 S.Ct. 729, 62 L.Ed.2d 729 (1980) the
court noted that "A similar warrant was obtained for a search of part of a
building owned by the Founding Church of Scientology in Washington, D. C. The
affidavits in support of the warrants were substantially identical, and so were
the warrants, except for descriptions of the premises to be searched."
(Emphasis added) 591 F.2d at 533. Nevertheless, the defendants in the
criminal trial continued to press the claim by a motion to suppress. When the
District Court in this Circuit, Judge Richey, ruled against the suppression
motion all the evidence in the seized documents, in effect, became admissible
as evidence against them. Apparently recognizing the probative force of such
evidence to prove their guilt the defendants shortly thereafter entered guilty
pleas as follows:
Sharon Thomas: Theft of government property-Count 17
Gerald Bennett Wolfe: Conspiracy-Count 23
Cindy Raymond: Conspiracy Count 23
Mitchell Hermann: Conspiracy-Count 1
Richard Weigand: Conspiracy-Count 23
Gregory Willardson: Conspiracy Count 23
Duke Snider: Conspiracy-Count 23
Henning Heldt: Conspiracy-Count 23
Mary Sue Hubbard: Conspiracy-Count 23
Thus, the ruling on the motion to suppress effectively caused the disposition
of the case and under normal court procedures the record upon which the court
ruled would become available to the public almost as a matter of course. A
different situation would exist if the seized documents had not
*327 **433 been introduced into evidence, but they had-all of them. The
Church contends that the documents had been introduced under seal "for the
purpose of showing that the search and seizure was unlawful." They were
admitted by the court as being relevant for that purpose. But the court ruled
that such documents did not prove the search to be unlawful. The documents thus
are at the core of the court's decision denying the suppression motion and it
is customary and ordinary in such cases for the record to disclose the
evidentiary basis for the ruling. And there is nothing to the point, that since
the court ruled the search was lawful, and the documents had been offered by
the defendants to prove the search was unlawful, that the documents upon which
the court ruled may not be disclosed.
B
Additionally, there is nothing to the point that the Church has a different
interest from the defendants. The individual defendants were not acting for
themselves. They were acting for the Church. As charged in the indictment the
Church of Scientology was organized with "a department known as the 'Guardian's
Office' (which) had responsibility to promote the interests of Scientology by
covertly identifying, locating, and obtaining all Scientology-related
information in the possession of various individuals, government agencies and
private organizations. Each of the Guardian Offices was composed of five
bureaus including the Information Bureau which was assigned the responsibility
for the conduct of covert operations including the collection of data and
documents of interest to Scientology." (Emphasis added).
Individual defendants, including the wife of the head of the world wide
Church, held official positions in the Guardian Office, United States, of the
Church of Scientology as listed below in the column entitled "Positions".
Approximate
Individuals Periods Positions
-------------------------------------------------------------
Henning Heldt Nov. 21, 1973- Deputy Guardian US
June 20, 1977 (DG US)
Duke Snider March 1974- Deputy Guardian--
Dec. 1, 974 Information US
(DG I US)
Dec. 1, 1974- Deputy-Deputy
June 20, 1977 Guardian US
(DDG I US)
Richard Weigand Dec. 1, 1974- Deputy Guardian--
May 15, 1977 Information US
(DG I US)
Gregory Willardson Sometime 1974- Information Bureau
Jan. 1, 1976 Branch I Director US
Jan. 1, 1976- Deputy-Deputy Guardian
June 16, 1977 Information US
(DDG I US)
June 16, 1977- Deputy Guardian
June 20, 1977 Information US
(DG I US)
Mitchell Hermann Jan. 1, 1974- Branch I Director,
a/k/a Mike Cooper March 1, 1975 Guardian's Office, DC
Jan. 1, 1976- Southeast US Secretary,
March 1, 1977 Guardian's Office, US
(SEUS SEC.)
Cindy Raymond June 1, 1974- Information Bureau
Jan. 1, 1976 Collections Officer US
Jan. 1, 1976- Information Bureau
Sept. 1, 1976 Branch I Director US
Sept. 1, 1976- Information Bureau
June 20, 1977 National Secretary US
Gerald Bennett Nov. 18, 1974- Covert Operative
Wolfe June 30, 1976 for Guardian Office
in Internal Revenue
Service
Mary Sue Hubbard Nov. 21, 1973- Controller and
May 27, 1977 Commodore Staff
Guardian (CSG)
supervising
Guardian Office
Sharon Thomas Feb. 29, 1976- Covert Operative
Nov. 5, 1976 for Guardian
Office in Department
of Justice
*328 **434 The offense alleged in the first count to which Hermann plead
guilty was an unlawful conspiracy "to commit offenses against the United States
of America, that is, by various illegal and unlawful means, to locate and
obtain illegally information and documents in the possession of the United
States of America which were related to Scientology and to individuals,
organizations and agencies perceived to be enemies of Scientology."
The conspiracy alleged in count 23 to which six (6) other officials of the
Church of Scientology plead guilty had as its alleged objectives:
(a) to obstruct justice in violation of Title 18, United States Code,
Section 1503;
(b) to obstruct a criminal investigation in violation of Title 18, United
States Code, Section 1510;
(c) to harbor and conceal a fugitive from arrest in violation of Title 18,
United States Code, Section 1071;
(d) to make false declarations in violation of Title 18, United States
Code, Section 1623;
Thus, most of the defendants were principal officers of the Church and it was
their activities as official "Guardians of the Church that generated most of
the documents in question. That is the nature of the charges against the
defendants and their guilty pleas are sufficient substantiation of the basic
charges as the court noted in its order of December 7, 1979: "Each of the five
defendants has admitted his or her guilt in open court. Moreover, never has
this Court been faced with such overwhelming evidence of guilt." (JA 243).
Moreover, a corporation is responsible for the acts of its officers and agents
committed within the scope of their authority. E. g., United States v.
Sherpix, 512 F.2d 1361, 1367 n. 7 (D.C.Cir.1975) I would thus not find the
Church to have any separate interest in the seized documents. In addition some
of the documents were admittedly stolen. Actually both the Church's officers
and the Church have the same intent concealment of the same improper activity.
C
Had not the trial judge ordered the release of the documents the complaint
would have been loudly asserted that he had unconstitutionally restricted
access to an essential basis for his decision in violation of the First
Amendment. The important public interest in assuring the proper conduct of
judicial proceedings would also have been *329 **435 compromised by
retaining a sealed record in a case where the materials had been an integral
part of a judicial determination on a motion to suppress. Absent unsealing the
record, there would have been no means to determine the basis for the trial
court's ruling denying the defendant's claim of unlawfulness. Absent unsealing
of the record, vital public information which had been involved in a serious
and important judicial proceeding would have been unavailable for public
inspection. In short, the trial judge was placed in a position where either
action he elected in regard to the sealed documents would have been criticized.
In my view, the only proper action was to remove the seal on the documents the
court found not to support the defendants' claim that the search was unlawful.
D
Judicial proceedings are not secret in our society. Indeed, the judiciary
scrupulously requires that all participants in a judicial proceeding be given
equal access to the court, and that, particularly in criminal cases, the
proceedings be open to the public, with severely limited exceptions. Where, as
in this case, the criminal proceedings had been effectively completed, and the
trial was to the court, there was no danger of adverse publicity affecting the
rights of the defendants which might militate against an open proceeding. See
Gannett Co., Inc. v. Pasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608
(1979). Moreover, the defendants' guilty pleas had resolved all doubt as to
their criminal conduct as reflected in the documents.
This leaves us with the question of the harm to the petitioning party, from
whose premises the documents were seized, resulting from disclosure of the
documents.[FN3] That, in turn, must necessarily be balanced against the harm to
the important public policies favoring disclosure.
FN3. There is the additional issue of the Church's right to intervene in a
pending criminal proceeding. That question is addressed in part III of this
dissent, infra.
The Church of Scientology of California asserts that the seizure of documents
from church buildings in Los Angeles necessarily demonstrates a sufficient
interest in the question of the validity of the search to entitle the Church to
intervene in the pending criminal proceeding involving only individual
defendants. That contention has some appearance of reasonableness, but it does
not withstand scrutiny.
Any assessment of the correctness of the trial court's action must acknowledge
the fact that a number of the documents quite simply do not belong to the
Church of Scientology of California in the first place. Indeed, certain of the
documents belong to others and were obtained through illegal means. In addition
to United States Government documents admittedly stolen from the Department of
Justice (Count 17), an amicus curiae brief filed in this court on behalf of two
Florida newspapers states that certain of the documents belong to it, and were
stolen from its lawyers. The newspapers have waived all privacy rights in the
materials. Brief for Amici Curiae Times Publishing Co., and Clearwater
Newspapers, Inc. at 5. This waiver does not in itself resolve the issue
involved in this appeal but it serves to identify some of the documents and to
emphasize that the Church of Scientology wants secrecy not privacy. These two
concepts are related only in the result they effectuate; their motivations are
decidedly different.
The court by ordering this remand, and reimposing a seal, is ordering secrecy,
despite its recognition of the "country's tradition of access to records of a
judicial proceeding." This issue is best resolved by reference to the decision
in Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98, 98 S.Ct.
1306, 1311, 55 L.Ed.2d 570 (1977) where the Supreme Court addressed the
question of access to court records:
"It is clear that the courts of this country recognize a general right to
inspect and copy public records and documents, including judicial records and
documents. . . .
*330 **436 "It is uncontested, however, that the right to inspect and
copy judicial records is not absolute. Every court has supervisory power over
its own records and files, and access has been denied where court files might
have become a vehicle for improper purposes.
"It is difficult to distill from the relatively few judicial decisions a
comprehensive definition of what is referred to as the common-law right of
access or to identify all the factors to be weighed in determining whether
access is appropriate. The few cases that have recognized such a right do agree
that the decision as to access is one best left to the sound discretion of the
trial court, a discretion to be exercised in light of the relevant facts and
circumstances of the particular case."
(footnotes omitted) (emphasis added).
The Supreme Court has recently affirmed the public nature of criminal trials.
In his opinion for the Court, in Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Chief Justice stated "a
presumption of openness inheres in the very nature of a criminal trial under
our system of justice." at 573, 100 S.Ct. at 2825. In Richmond Newspapers
the Supreme Court held that the public has a First Amendment right to attend a
criminal trial, except in extraordinary circumstances where a closed proceeding
is necessary to assure the defendant a fair trial.
Collectively, these decisions establish the clear and historically based
presumption favoring public trials. The record of a trial is no less a part of
the proceeding than the actual examination of witnesses. Where, as here, the
controversy presented to the court was limited to a single major issue the
validity of the search and where the defendants contended that their claim of
invalidity was proven by all the documents they caused to be admitted into
evidence, making the documents available in the public record becomes even more
important. Absent such access, the public's opportunity to assess the validity
of the courts ruling as applied to these criminal defendants would be virtually
nonexistent. (1) The central issue in the suppression proceedings, and (2) the
factual basis for the acceptance of the plea bargain agreement, would be
obscured from the public and the press. The confidence of the public in the
judicial process, and the constitutional right of access to criminal
proceedings, requires upholding the action of the trial court in this case.
The requirement for public disclosure of the evidentiary record in a court
proceeding which results in a judicial ruling naturally flows from the
constitutional requirement that the trial be public. Even though a motion to
suppress may not be a "trial" there is no difference in the ultimate
requirement that the record be public. A judicial proceeding cannot be said to
be public if the public be denied access to the evidence admitted as relevant
to the issues before the court. It is as important to public disclosure of
judicial proceedings that the public be able to read written evidence in the
record as it is that they be able to hear oral testimony.
One objective of a public trial of universal benefit to the public and
defendants is that it prevents justice from being administered covertly or
based on "secret bias or partiality." Id., p. 569, 100 S.Ct. p. 2823. It
also protects judges from being improperly charged with bias, corruption or
misapplication of the law. Had the motion to suppress been granted there is no
question that the evidentiary record would have been available to the public,
and it is just as available when the motion is denied.
The majority states that it cannot determine from the trial judge's orders
what factors entered into the decision to unseal, or whether he had
appropriately balanced the generalized interests. The record does not support
such criticism. The trial judge made explicit reference to his reasoning at the
time he ordered the unsealing. The Court's order of October 25, 1979 stated:
(T)his Court firmly believes that there is a right in the public to know what
occurs before the courts. In addition, there is a public interest in access to
Court records. As Justice Brandeis once said, sunshine is the best
disinfectant. (JA 171)
*331 **437 Regardless of the references to the public right "to know" and
sunshine being "the best disinfectant", the statement that "there is a public
interest in access to Court records" is a correct statement and an adequate
basis for decision. In fact, it could have been stated more forcibly as a
"public right in access to Court records." Cf., Richmond Newspapers, supra.
I would accordingly follow:
the settled rule that, in reviewing the decision of a lower court, it must be
affirmed if the result is correct "although the lower court relied upon a wrong
ground or gave a wrong reason." Helvering v. Gowran, 302 U.S. 238, 245, 58
S.Ct. 154, 158, 82 L.Ed. 224.
Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 88, 63
S.Ct. 454, 459, 87 L.Ed. 626 (1943).
Necessarily inherent in the unsealing by the court was its decision to review
the documents and specifically exclude those which were highly personal. This
was done. Following the extraction of such personal documents the remaining
documents involved in the suppression decision were unsealed to place them in
the public record. The assertion that the learned trial judge did not
thoroughly review the documents in their entirety is unsupported by the record,
and is a complete unjustifiable assumption since the court's order explicitly
acknowledged the need to examine the record in its entirety despite the time
intensive nature of the review.[FN4]
FN4. In a memorandum dated October 30, 1979, filed in response to the
defendants motion for reconsideration of the unsealing order the trial
judge expressly stated that during the suppression hearing "all of the
documents seized in Los Angeles were put into evidence by the defendants."
(JA 223, 224) (emphasis in original) That same order makes an explicit
reference to the need to review the entirety of the material relating to
"sex lives of members of the Church, tax returns of individuals, and
attorney-client material of law firms." JA 228. The final paragraph of the
memorandum states that it is
"Further Ordered, that the seal shall remain on documents not used by the
parties for examination of witnesses at the suppression hearing until the
Court examines each in light of issues raised by the defendants, and, the
Court will begin such process today." JA 228 (emphasis added).
III
On remand of this case, the Church of Scientology of California will be
allowed to participate as an intervenor. In my view such action is incorrect
because it interferes with a pending criminal case, and because the Church's
claim regarding the documents can be made in other proceedings.
By definition, the parties to a criminal proceeding are the government and the
defendants. By definition, the issues in a criminal proceeding are concerned
with the guilt or innocence of the defendants. While other issues ancillary to
that central question of criminal responsibility are often involved, it is
essential that pending criminal cases not be inhibited by the resolution of
issues remote from the main case, particularly those involving parties other
than the government and the criminal defendants. E. g., In the Matter of An
Application for a Search Warrant of Wiltron Associates, Ltd., 49 F.R.D. 170,
172 (S.D.N.Y.1970).
The Church of Scientology is entitled to bring an action posited on the
federal court's general supervisory power over federal law enforcement
officials for a return of the property, or it may make application in the court
where the criminal proceedings were pending. United States v. Wilson, 540
F.2d 1100, 1104 (D.C.Cir.1976). These provide sufficient alternatives so that
intervention in a pending criminal case should not be allowed. The majority is
creating an unfortunate precedent which will unnecessarily obstruct criminal
trials and greatly increase the already difficult case load which federal
district courts must process. Accordingly, I dissent from allowing the Church
of Scientology of California to intervene in a pending criminal proceeding to
litigate its asserted interest in the seized documents.
IV
This appeal will again be before this panel after the learned trial judge has,
in accordance **438 *332 with the court's opinion, explicated any
additional reasons he may have had for removing the seal, and performed
whatever further documentary review is required. Because the appeal is
resolveable as it is presented to us, I respectfully dissent from the remand
ordered by the court. Because in my view the court acted properly in opening
the record to the public, I dissent from the sealing of the evidentiary
documents. And because the trial court correctly denied the Church of
Scientology of California leave to intervene in a pending criminal proceeding
to assert collateral issues I dissent from the court's disposition of the
remand issue.
MEMORANDUM
Opinion After Remand
In United States v. Hubbard, 650 F.2d 293 (D.C.Cir. 1980), this court
ordered this case remanded to the district court for "review (of) its decision
to unseal the documents" at issue in light of "this court's determination, on
the basis of the record now before us, that the seal on the documents at issue
should be retained, absent substantial factors weighing in favor of public
access." Id., at 324. We left open to the district court the option of
abiding by its original order in whole or in part. However, we mandated that
this result be accompanied by an expanded record. Any decision ordering the
unsealing of documents was to include an explanation in a "supplemental
rationale" of "how the trial judge's analysis of the generalized interests at
stake differed from our own, (and) whether he may have justified disclosure on
the basis of the 'particularized' factors we suggest or on some other basis as
well as with specific reference to the particular documents or groups of
documents to which each reason is applicable." Id., at 324. This rationale
was to be supplied to the parties, including the Church, to enable them to file
a motion for reconsideration in which they might contest its findings or offer
evidence of particularized privacy interests in the involved documents. We
postponed our final ruling on the original appeal from the unsealing order
until such time as the district court ruled on these motions and transmitted
the record of the supplemental proceedings to this court. Id., at 324-325.
On remand, the trial judge who had issued the original order unsealing the
documents reaffirmed the original reasons given for his order in a supplemental
memorandum opinion issued on October 15, 1980. United States v. Hubbard,
Crim. No. 78-401 (D.D.C. Oct. 15, 1980). Although the trial judge wrote that
he "perceives no particularized reason for the release of the documents, other
than those stated in the unsealing order," see id., slip op. at 3, he both
restated several general reasons for his decision to release the entire group
of documents at issue, and presented apparently particularized justifications
for the release of individual documents or groups of documents. See id.,
slip op. at 4. However, he failed to identify the documents or groups of
documents to which these particularized justifications applied. See id. The
record was then transmitted to this court.
On October 30, 1980, the trial judge recused himself from participation in any
further proceedings in this case.
On November 5, the district judge assigned to the case after the first judge's
recusal filed an order stating that because he had no "knowledge regarding the
trial judge's determination that disclosure of the documents under seal was
warranted, (he) is in no position to 'supplement' his rationale (.)" Church
of Scientology v. United States, Civ. No. 79-2975, slip op. at 2 (D.D.C. Nov.
5, 1980). Stating further that "this court perceives no 'substantial factors'
favoring disclosure," he concluded:
Upon consideration of the generalized and particularized privacy interests in
the instant case, this Court can only conclude that the documents in question
must remain under seal "until the evidentiary *333 **439 utility of the
seized documents is exhausted."
Id.
No motions for reconsideration nor appeals have been filed subsequent to the
November 5th order of the district court. Both appellants and appellees have
filed memoranda with this court responsive to the earlier supplemental opinion
of the original trial judge, appellants urging that the documents continue to
be kept under seal, and appellees urging that the supplemental record provides
a sufficient rationale for their unsealing. We consequently decide the original
appeal from the unsealing order on the basis of the original record as
supplemented by the memoranda and order issued by the two district judges.
Our original remand, designed to clarify the reasons for release, did not
require the district court to state particularized justifications for the
release of individual documents or categories of documents; our remand required
instead that if such justifications in fact contributed to the decision to
unseal, then the reasons be stated and the documents to which they are
applicable be identified. In his supplemental opinion, the original trial
judge, though disclaiming any additional reasons for release other than those
set out in his original order, set out several particularized justifications
without reference to identifiable documents or groups of documents. In the
absence of any such identification, neither this court nor the parties
concerned can meaningfully address the stated reasons for release. Thus, the
purpose of the remand was not fulfilled. If he had not recused himself, we
would therefore have been forced to remand this case again, stressing that
while the district court is not required to conduct the review which may be
necessary to identify the documents to which the trial judge's apparently
particularized justification pertain, he should have the opportunity to do so.
The subsequent memorandum and order of the second judge, however, indicates
that he has decided not to conduct any such review, as he perceives no
substantial factors, generalized or particularized, favoring disclosure.
Instead, he has ordered that the documents remain under seal until their
evidentiary value is exhausted.
In light of this new determination, this court now enters a final judgment, in
accordance with the rationale stated in our earlier opinion, reversing the
original unsealing order from which the appeals were taken, and remanding the
case to the district court for reentry of an order similar to the order of
November 5 maintaining the documents under seal. Upon entry of such order our
stay of the original unsealing order will be automatically vacated.
MacKINNON, Circuit Judge (dissenting): I dissent from the order sealing the
record in this case. My reasons are stated extensively in my dissent, supra
at 325. In short, in my view, the decision was within the discretion allotted
to the trial judge and conforms to that "presumption of openness (which)
inheres in the very nature of a criminal trial under our system of justice."
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65
L.Ed.2d 973 (1980). The availability of the documents in question to public
scrutiny is fully supported by the principle that the public should have access
to the testimony and written evidence in the record upon which the court relied
in making its decision. Nixon v. Warner Communications, Inc., 435 U.S. 589,
597-98, 98 S.Ct. 1306, 1311-12, 55 L.Ed.2d 570 (1977).